UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A    REVIEW 

IN 


LAW    AND    EQUITY 


FOR 


LAW    STUDENTS 


TOGETHER  WITH 

A  SUMMARY  OF  THE  RULES  REGULATING  ADMISSION  TO 
PRACTICE  THROUGHOUT  THE  UNITED  STATES 


A   HAND-BOOK  FOR  LAW   STUDENTS 


BY 

GEORGE  E.  GARDNER 

OF  THE  MASSACHUSETTS  BAR 


NEW  YORK 
BAKER,   VOORHIS  &   COMPANY 


r 


COPYRIGHT,  1894,  BY 
BAKER,  VOORHIS  &  COMPANY. 


THIS   BOOK 

IS   AFFECTIONATELY    INSCRIBED 
TO   MY    FATHER 


PREFACE. 


THIS  book,  as  its  title  indicates,  is  designed  for 
students  who  are  making  their  final  preparations  for 
admission  to  the  Bar.  Incidentally  it  may  be  found 
useful  throughout  the  period  of  study.  It  aims  at  a 
clear  and  concise  statement  of  the  leading  principles  of 
those  branches  of  the  law  which  are  seriously  taught 
in  the  law  schools  of  the  country  and  which  form  the 
subjects  of  Bar  examinations.  The  book  is  short,  and 
designedly  so.  The  value  of  a  work  of  this  character, 
roughly  speaking,  varies  inversely  as  its  length.  Brevity, 
clearness,  and  simplicity  have  been  constantly  in  mind 
in  its  preparation.  Real  Property  is  ordinarily  the 
source  of  the  student's  chief  difficulty,  and  special  care 
has  been  taken  to  make  the  discussion  of  this  subject 
clear  by  an  abundant  use  of  illustrations,  which  have  also 
been  freely  used  elsewhere.  While  the  Statute  of 
Uses  and  the  treatment  which  it  received  at  the  hands 
of  the  courts,  Fines,  Common  Recoveries,  the  Canons 
of  Descent,  and  the  Action  of  Ejectment  as  a  means 
of  trying  a  title  to  land,  are  of  course  largely  obsolete, 
they,  and  similar  subjects,  are  not  merely  a  matter  of 
curious  interest  to  the  student  of  legal  history,  but 
they  still  occupy  a  prominent  place  in  the  examinations 
for  admission  to  the  Bar  in  many  States.  Whether 
profitably  or  not,  is  a  question  with  which  the  candidate 
has  little  concern.  The  difficulty  in  such  subjects  lies 
largely  in  their  obscure  statement,  an  obscurity  from 
which  even  Blackstone  is  not  wholly  free.  It  is  hoped 

(v) 


Vi  PREFACE. 

that  the  illustrations  herein  used  may  be  of  some  as- 
sistance in  such  matters.  The  general  law  of  contracts, 
particularly  that  of  negotiable  instruments,  has  been 
stated  at  some  length,  as  has  also  that  of  Personal 
Property,  Equity,  Pleading,  and  Evidence,  and  it  is  be- 
lieved that  the  summary  of  the  law  of  Torts  and  Crimes 
is  sufficient  for  the  end  in  view.  The  book  contains  a 
chapter  on  Quasi-Contracts,  a  subject  which  has  come 
to  occupy  a  prominent  place  in  the  courses  of  study  of 
many  law  schools,  and  which  so  far  as  the  writer  knows 
has  hitherto  received  little  attention  in  works  of  this 
class. 

Substantially  every  statement  in  the  text  has  been 
verified  by  an  examination  of  authorities  which  are  fully 
cited  and  which  ought  to  add  substantially  to  the  book's 
availability.  The  collection  of  rules  regulating  admis- 
sion to  the  Bar  throughout  the  United  States  may  be 
of  interest  to  those  who  are  uncertain  as  to  their  loca- 
tion in  practice,  and  perhaps  of  value  generally  to  those 
who  are  concerned  in  legal  education. 

From  a  somewhat  extended  use  of  the  material 
which  has  gone  into  this  book  with  graduates  of  law 
schools  and  office-bred  students,  the  writer  feels  safe  in 
saying  that  a  candidate  who,  after  a  sufficient  period 
of  study,  finds  himself  master  of  its  contents,  will  have 
little  difficulty  with  any  examination  for  admission  to 
the  Bar  to  which  he  is  likely  to  be  subjected. 

WORCESTER,  November,  1894. 


CONTENTS. 


CHAPTER  I. 
INTRODUCTION. 

Law — International — Civil — Municipal — Common — Stat- 
utes —  Construction  —  Kinds  of —  Customs — Essen- 
tials of 1-6 

CHAPTER  II. 

GENERAL  OUTLINE. 

Rights — Absolute — Relative — of  Persons — of  Things — 
Husband  and  Wife — Parent  and  Child — Guardian 
and  Ward 7-16 

CHAPTER  III. 

THE  FEUDAL  SYSTEM — ENGLISH  TENURES. 

Feudal  System — Origin  of — Fealty — Homage — Conquest 
of  England  in  1066 — Knight  Service — Aids — Relief — 
Primer  Seisin  —  Wardship  —  Marriage — Fines — Es- 
cheat— Free  and  Common  Socage — Gavelkind — 
Borough  English  —  Villenage  —  Pure  —  Privileged — 
Frankalmoign 17-21 

CHAPTER  IV. 

REAL  PROPERTY. 

Lands — Tenements — Hereditaments — Easements 22-27 

CHAPTER  V. 

FREEHOLDS   OF   INHERITANCE. 

Fees  Simple — Fees  Tail — Conditional  Fees — Frankmar- 

riage 28-30 

(vii) 


Vlll  CONTENTS. 

CHAPTER  VI. 
FREEHOLDS  NOT  OF  INHERITANCE. 

Estates — Conventional — Legal — Incidents  of — Tenancy  in 
Tail  after  possibility  of  issue  extinct — Curtesy — Dower 
— Jointure ...,....» 3*-34 

CHAPTER  VII. 

ESTATES   LESS  THAN   FREEHOLD. 

Estates — for  Years — at  Will — at  Sufferance — Incidents  of.      35-37 

CHAPTER  VIII. 
ESTATES  UPON   CONDITION. 

Conditions — Kinds  of— Void — Estate  upon  Condition — 
Estate  with  Limitation — Conditional  Limitation — Dis- 
tinguished—Mortgage—Parts of— Interest  of  Mort- 
gagee— Foreclosure — Tacking 38-42 

CHAPTER  IX. 

REMAINDERS— EXECUTORY  DEVISES— REVERSIONS. 

Remainders — Kinds  of — Essentials  of— Illustrations  of — 
Rule  in  Shelly 's  Case — Perpetuities — Merger — Exec- 
utory Devise — Distinguished  from  Remainders — Illus- 
trations— Reversions — Incidents  of 43-48 

CHAPTER  X. 
SEVERALTY — JOINT  TENANCY,  ETC. 

Joint  Tenancy — Unities — Tenants  by  the  Entirety — Right 
of  Survivorship — Nature  of  Seisin — Coparcenary — 
Distinguished  from  Joint  Tenancy — Hotchpot — Ten- 
ancy in  Common — Nature  of  Seisin — Unity  of  Pos- 
session   

CHAPTER  XI. 

TITLE   BY  DESCENT. 

Title — Elements  of— by  Adverse  Possession — Descent — 
Consanguinity  —  Methods  of  Computing  —  Heirs — 
Canons  of  Descent — Explained — Illustrated 


CONTENTS.  IX 

CHAPTER  XIL 

TITLE   BY  PURCHASE. 

Purchase — Methods  of  acquiring  Title  by — Escheat — For- 
feiture— Occupancy  —Prescription — Alienation 57~59 

CHAPTER  XIII. 

ALIENATION   BY  DEED. 

Deed  —  Defined  —  Requisites  —  Attestation  —  Record  — 
Parts  of — Warranties  —  Covenants  —  Measure  of 
Damages  for  Breach  of  Covenants — Avoided,  how — 
Conveyances — Classes  of — Feoffment — Gift — Grant 
— Lease — Exchange — Partition — Release — Confirma- 
tion— Assignment — Surrender — Defeasance 60-68 

CHAPTER  XIV. 
USES — STATUTE  OF— CONVEYANCES   UNDER. 

Statutes  of  Mortmain — their  History — Uses — Origin — 
their  Use — their  Abuse— Statute  of  Uses — Purpose — 
Defeated,  how — Practical  Results  of— Conveyances 
arising  from  Statute  of  Uses 69-74 

CHAPTER  XV. 

ALIENATION   BY  MATTER    OF    RECORD  AND    SPECIAL  CUSTOM. 

Fines — Parts  of — Effect  of — Common  Recovery — Origi- 
nated, by  whom — as  a  Bar  to  Estates  Tail — Explained 
and  Illustrated — Surrender — as  a  Means  of  Convey- 
ing Copyhold  Estates 75-77 

CHAPTER  XVI. 
DEVISES — LEGACIES. 

Statute  of  Wills — State  of  Law  prior  to — Substance  of — 
Devises — Parties  competent  to  make — Execution  of — 
Acknowledgment  —  Witnesses  —  Revocation — Lega- 
cies —  General — Specific — Demonstrative — Lapsed — 
Contingent — Cy  Pres  Doctrine 78  81 

CHAPTER  XVII. 

PERSONAL   PROPERTY. 

Chattels — Real — Personal — Fixtures — Choses — in  Posses- 
sion— in  Action — Title — by  Occupancy — by  Acces- 


X  CONTENTS. 

sion — by  Confusion — by  Intellectual  Labor — by  For- 
feiture— Deodands — by  Custom — Heriots — Mortua- 
ries— Heirlooms — by  Judgment — by  Insolvency — by 
Prerogative — by  Intestacy — Administrators  and  Ex- 
ecutors— Law  governing  Descent  of  Property — Gifts 
— Inter  Vivos — Causa  Mortis 82-88 

CHAPTER  XVIII. 
CONTRACTS — GENERAL  PRINCIPLES— PARTIES. 

Contracts  —  Specialties  —  Simple  —  Parol — Written — Ex- 
press—  Implied — Void  — Voidable — Immoral — Illegal 
— Impolitic — Fraudulent — Essentials  of—  Parties — 
Unable  to  Contract — Infants — Assent  Necessary — 
Contracts  by  Mail — Consideration — Good — Valuable 
— Implied,  when — Executed  Consideration — Mar- 
riage Brocage  Contracts— Contracts  in  Restraint  of 
Marriage,  of  Trade — Lex  Loci  Contractus — Lex  Fori.  89-95 

CHAPTER  XIX. 

SALES. 

Thing  sold — Price — Consent  of  Parties — Defects — Latent 
— Patent — Caveat  Emptor — Warranties — Delivery — 
Statute  of  Frauds — Effect  of  Vendor's  remaining  in 
Possession — Stoppage  in  transitu 96-100 

CHAPTER  XX. 
BAILMENTS. 

Depositum  —  Mandatum — Commodatum — Pignus — Loca- 
tio — Innkeepers — Common  Carriers — Liability  of — 
Begins,  when — Ends,  when — Beyond  own  Route — 
for  Passengers — for  Baggage — Regulation  of  liabil- 
ity by  Notice — Lien  of ,  101-107 

CHAPTER  XXI. 
AGENCY— AGENTS. 

Agents  —  General  —  Special  —  When  personally  liable  — 
Agency,  Contract  of — how  created — how  terminated 
—  Attorneys — Auctioneers  —  Brokers — Factors — Del 
Credere  Commission — Master  and  Servant 108-113 


CONTENTS.  Xi 

CHAPTER  XXII. 

BILLS  AND  NOTES. 

Promissory  Note — Essentials — Form  of — Parties  to — Void, 
when — Indorsement  —  Kinds  of — Status  of  Party 
writing  his  name  on  back  of  note  at  the  time  it  is 
made,  without  indicating  in  what  capacity — Consid- 
eration— may  be  inquired  into,  when — Usurious — 
Gaming — Overdue  Note — Presentment — to  be  made, 
when  and  where — Excuses  for  failure  to  present — 
Demand,  when  necessary  to  sustain  suit — Statute  of 
Limitations  with  reference  to  Demand  and  Sight 
Notes — Days  of  Grace — Proceedings  on  Non-payment 
— Notice  of  Dishonor — Non-negotiable  Notes — Bills 
of  Exchange— Parties— Acceptance — Protest — Bank 
Checks 114-127 

CHAPTER  XXIII. 

PARTNERSHIP. 

Nature,  Creation,  and  Extent  of  Partnership — Rights  and 
Duties  of  Partners  in  regard  to  each  other  and  the 
public — Dissolution — Retiring  Partner 128-132 

CHAPTER  XXIV. 

OTHER  CONTRACTS — MATTERS  OF  DEFENCE. 
Suretyship  and  Guaranty — Novation — Arbitration — De- 
fences— Performance — Payment — Accord  and  Satis- 
faction— taking  Negotiable  Instrument  in  Payment — 
Statute  of  Limitations — Set-off — Infancy — Bankrupt- 
cy— Rules  for  Construction  of  Contracts 133-136 

CHAPTER  XXV. 
QUASI-CONTRACTS. 

Quasi- Contracts — Defined — Distinguished  from  Contract 
implied  in  fact — classified  with  Contracts,  why — 
Classes  of  Quasi-Contracts — Discussed — Illustrated — 
General  and  Limiting  Principles  stated 137-148 

CHAPTER  XXVI. 

TORTS. 

Torts  —  Distinguished  from  Contracts  —  from  Crimes  — 
must  be  immediate  Cause  of  Injury — Classes  of — 


Xll  CONTENTS. 

Assault — Battery — False  Imprisonment — Injuries  by 
Dogs  and  Dangerous  Animals — Trespass — Waste — 
Nuisance — Conversion — Infringement  of  Patents,Copy 
rights,  Trade-marks  —  Seduction  —  Slander — Libel — 
Privileged  Communications — Malicious  Prosecution.  149-159 

CHAPTER  XXVII. 
EQUITY. 

Equity — Origin  of  Jurisdiction  in — Differences  between 
Courts  of  Law  and  Equity — Maxims — Trusts — Mort- 
gages— Assignment — Accident  —  Mistake  —  Fraud — 
Notice — Estoppel  —  Conversion — Adjustment — Equi- 
table Liens 160-176 

CHAPTER  XXVIII. 
EQUITABLE  REMEDIES. 

Specific  Performance — Injunctions — Re-execution,  Refor- 
mation, and  Cancellation  of  Written  Instruments — 
Bills — of  Account — of  Creditors — of  Discovery — of 
Partnership — Quia  Timet — of  Peace— of  Interpleader 
— to  take  Testimony — to  perpetuate  Testimony 177-183 

CHAPTER  XXIX. 

PLEADING. 

Actions  —  Civil  —  Criminal  —  Legal — Equitable — Real  — 
Personal — Mixed — Commenced,  how — Return  Day — 
Appearance 184-190 

CHAPTER  XXX. 

THE   PLEADINGS. 

Declaration — Demurrer— Pleas — Dilatory— Peremptory- 
Traverses — by  way  of  Confession  and  Avoidance — 
Rebutter  —  Surrebutter  —  Rejoinder — Surrejoinder — 
Demand  of  Oyer— Trial— Verdict— Judgment — Exe- 
cution   191-197 

CHAPTER  XXXI. 

RULES  OF   PLEADING. 

Rules  tending — to  the  Production  of  Issue — to  the  Produc- 
tion of  a  Material  Issue — to  the  Production  of  a  Single 


CONTENTS.  xiii 

and  a  Certain  Issue — to  the  Prevention  of  Obscurity 
and  Confusion,  of  Prolixity  and  Delay — Miscellaneous 
Rules  198-201 

CHAPTER  XXXII. 

PLEADING   IN   EQUITY. 

Bill — Parts  of— Defence — Form  of— Rules  of  Pleading — 
with  regard  to  true  Bill — with  regard  to  the  Defence — 
Bills  having  special  Relation  to  Pleading 202-205 

CHAPTER  XXXIII 

EVIDENCE. 

Instruments  of  Evidence — Evidence — Direct — Circumstan- 
tial— Presumptive — Rules  governing  the  Production 
of  Testimony — Ambiguities — Receipts — Rules  gov- 
erning the  Introduction  of  Parol  Testimony  to  affect 
Written  Instruments — Hearsay — Apparent  Excep- 
tions to  Rule  against — Real  Exceptions  to  Rule 
against  —  Admissions  —  Confessions  —  Evidence  ex- 
cluded on  Ground  of  Public  Policy — Witnesses — 
Competency — Examination  and  Rules  relating  thereto.  206-218 

CHAPTER  XXXIV. 

CRIMINAL   LAW. 

Parties  Incapable  of  committing  Crime — Principals — Ac- 
cessories— Treason — Felony —  Misdemeanors  —  Rule 
of  Reasonable  Doubt — Rule  against  Second  Trial  for 
same  Offence — Specific  Crimes 219-229 

CHAPTER  XXXV. 

CORPORATIONS. 

Corporations — Classes  of — Created,  how — Powers — Dis- 
solved, how 230-232 


RULES  REGULATING  ADMISSION  TO  THE  BAR  IN  ALL 
STATES  AND  TERRITORIES  OF  THE  UNITED 
STATES 233-269 

INDEX 271-299 


TEXT-BOOKS   CITED   IN   THIS  WORK. 


Adams  on  Equity. 
Addison  on  Contracts. 
Angell  &  Ames  on  Corporations. 
Archbold  on  Civil  Pleading. 

Bacon's  Maxims. 
Baylies  on  Sureties  and  Guaran- 
tors. 

Benjamin  on  Sales. 
Best  on  Evidence. 
Bigelow  on  Estoppel. 
Bigelow  on  Torts. 
Bishop  on  Contracts. 
Bishop  on  Criminal  Law. 
Bishop  on  Marriage  and  Divorce. 
Bispham  on  Equity. 
Blackstone's  Commentaries. 
Bouvier's  Law  Dictionary. 
Browne  on  Statute  of  Frauds. 
Browne  on  Usages  and  Customs. 
Burrell's  Law  Dictionary. 

Chitty  on  Contracts. 
Chitty  on  Pleading. 
Clark  on  Criminal  Law. 
Coke  on  Littleton. 
Comyn's  Digest. 
Cooley  on  Torts. 

Daniel    on    Negotiable     Instru- 
ments. 
Dillon  on  Municipal  Corporations 

East,  Pleas  of  the  Crown. 
Ewell  on  Fixtures. 


Fearne  on  Contingent  Remain- 
ders. 
Ferard  on  Fixtures. 

Gould  on  Pleading. 
Greenleaf  on  Evidence. 
Guizot's  History  of  Civilization. 

Hadley's  Introduction  to  Roman 

Law. 

Hallam's  Middle  Ages. 
Hawkins'  Pleas  of  the  Crown. 
Haynes'  Outlines  of  Equity. 
Heard  on  Civil  Pleading. 
Hilliard  on  Contracts. 
Hilliard  on  Torts. 

Jarman  on  Wills. 
Jones  on  Bailments. 
Jones  on  Equity. 
Jones  on  Liens. 
Joyce  on  Injunctions. 

Keener  on  Quasi-Contracts. 
Kent's  Commentaries. 
Kerr  on  Injunctions. 

Lawson  on  Contracts. 

Lawson   on    Rights,  Remedies, 

and  Practice. 
Leading  Cases  in  Equity. 
Leake  on  Contracts. 
Lewin  on  Trusts. 
Lieber's  Legal  and  Political  Her- 

meneutics. 

Lindley  on  Partnership, 
(xv) 


XVI 


TEXT-BOOKS  CITED  IN  THIS  WORK. 


May  on  Criminal  Law. 
Mechem  on  Agency. 
Metcalf  on  Contracts. 
Mitford  on  Equity  Pleading. 
Morawetz  on  Corporations. 
Morse  on  Arbitration. 

Odgers  on  Libel  and  Slander. 

Parsons  on  Bills  and  Notes. 
Parsons  on  Contracts. 
Parsons  on  Partnership. 
Pingreeon  Mortgages. 
Pollock  on  Contracts. 
Pomeroy    on    Equity    Jurispru- 
dence. 

Pomeroy  on  International  Law. 
Pothier  on  Obligations. 
Preston  on  Estates. 

Randolph  on  Commercial  Paper. 
Rapalje  &  Lawrence's  Law  Dic- 
tionary. 

Redfield  on  Wills. 
Rice  on  Evid«n(je. 
Rorer  on  Railroads. 
Russell  on  ^Crimes. 

Schouler  on  Bailments. 
Schouler  on  Domestic  Relations. 
Schouler  on  Personal  Property. 


Schouler  on  Wills. 
Smith  on  Equity. 
Starkie  on  Evidence.       • 
Starkie  on  Libel  and  Slander. 
Stephen's  Digest  of  Evidence. 
Stephen  on  Pleading. 
Story  on  Bailments. 
Story  on  Equity  Jurisprudence. 
Story  on  Equity  Pleading. 
Story  on  Partnership. 
Story  on  Promissory  Notes. 
Sutherland    on    Statutory    Con- 
struction. 

Tiedeman  on  Commercial  Paper. 

Tiedeman  on  Equity. 

Tiedeman  on  Real  Property. 

Touchstone. 

Townshend  on  Slander  and  Libel 

Walker's  American  Law. 
Washburn  on  Easements. 
Washburn  on  Real  Property. 
Wharton  on  Criminal  Law 
Wharton  on  Evidence. 
Wilberforce  on  Statute  Law. 
Williams  on  Executors. 
Williams  on  Real  Property. 
Wood  on  Master  and  Servant. 
Wood's  Mayne  on  Damages. 
Wood  on  Nuisance. 


CHAPTER   I. 

INTRODUCTION. 

Law,  in  its  broadest  sense,  signifies  a  rule  of  action. 
In  its  legal  sense  it  includes 

1.  International  law. 

2.  The  civil  law. 

3.  Municipal  law. 

1.  International   law    is   that   system    of    jurispru- 
dence  which    defines   the   rights    and    prescribes    the 
duties    of     nations     in     their     intercourse    with    one 
another.1 

2.  The  civil  law  is  that   system   of    jurisprudence 
which  was  developed  by  the  Roman  Republic  and  Em- 
pire.2    Our  completest  knowledge  of  it  is  derived  from 
the  Code,  Institutes,  and  Pandects  formulated  and  col- 
lected in  the  reign  of  Justinian  (A.D.  5  30-5  3 3)."     The 
civil  law  forms  the  foundation  of  the  jurisprudence  of 
Europe  and  of  the  State  of  Louisiana.     It  is  famous 
for  its  enlightened  equity,  and  many  of  its  principles 
have  been  incorporated  into  English  and  American  ju- 
risprudence.4 

3.  Municipal  law  is  a  rule  of  civil  action  prescribed 
by  the  supreme  power  of  a  State.5 

1  i  Kent  Comm.  i;  Poison,  Sect,  i,  §  i.     For  other  definitions,  see 
Pomeroy  on  International  Law,  p.  2.  2  Bouvier,  Law  Diet. 

3  Hadley,  Introduction  to  Roman  Law,  6;  i  Kent  Comm.  538. 

4  Lane    v.    Cotton,     12    Mod.    482  ;     Bouvier,    Law    Diet.,    Civil 
Law. 

s  i  Bl.  Comm.  44;  i  Kent  Comm.  447. 

(I) 


2  A   REVIEW   IN   LAW   AND   EQUITY. 

Civil  action  is  the  action  of  an  individual  in  his  capac- 
ity as  a  member  of  society. 

Every  municipal  law  in  theory  contains  four  parts: 

1.  The  declaratory,  in  which  are  denned  the  rights 
to  be  observed  or  the  wrongs  to  be  avoided. 

2.  The   directory,  in  which   the  observance   of   the 
rights  and  the  avoidance  of  the  wrongs  are  enjoined. 

3.  The  remedial,  which  points  out  the  remedy  to  be 
pursued  by  the  injured  party. 

4.  The  vindicatory,  which  contains  the  penalty  to  be 
imposed  upon  the  violator  of  the  law. 

The  municipal  law  of  the  British  Empire  and  of  the 
United  States  consists  of:1 

I.  The  unwritten  or  common  law. 

II.  The  statute  law. 

I.  The  common  law  is  the  will  of  a  community  as 
expressed  by  the  customs  and  usages  which  have  gov- 
erned the  actions  of  men  for  an  indefinite  period,  the 
record  of  which  is  contained  in  the  decisions  of  courts 
of  justice  and  in  the  commentaries  of  men  learned  in 
the  law. 

In  the  United  States  the  common  law  includes  that 
portion  of  the  statute  law  of  England  which  was  in 
force  when  independence  was  gained,  and  which  was 
applicable  to  our  changed  condition.11  Such  a  statute 
was  that  of  13  Eliz.  (1571)  against  conveyances  of  land 
in  defraud  of  creditors. 

Customs  are  of  two  kinds : 

1.  General  customs,  which   prevail   throughout   the 
State  of  whose  law  they  are  a  part. 

2.  Particular  customs,  which  are  confined  to  some 
particular  locality. 

1  i  Bl.  Comm.  61. 

9  Van  Ness  v.  Packard,  2  Pet.  144;  Heirs  of  Girard  v.  Philadelphia, 
4  Rawle  333;  Morgan  v.  King,  30  Barb.  9;  Commonwealth  v.  Knowl- 
ton,  2  Mass.  534;  Lorman  v.  Benson,  8  Mich.  18. 


INTRODUCTION.  3 

A  distinction  is  sometimes  made  between  a  custom 
and  a  usage,  in  that  the  former  is  local,  while  the  latter  is 
personal,  and  has  no  reference  to  locality.1  The  usage 
is  the  legal  evidence  of  the  existence  of  a  custom." 

There  are  seven  requisites  for  a  good  custom.  It 
must  be 

1.  Immemorial. 

2.  Continuous, — i.  e.,  the  right  must  exist  constantly, 
though  it  need  not  be  continually  exercised. 

3.  Peaceable. 

4.  Reasonable. 

5.  Certain. 

6.  Compulsory,  i.  e., — it  must  be  of  binding  obliga- 
tion on  all  upon  whom  it  operates. 

7.  Consistent  with  other  customs. 

II.  A  statute  is  an  expression  of  the  will  of  a  com- 
munity through  the  medium  of  a  lawfully  constituted 
legislative  body.3 

Statutes  are  divided  into 

1.  General,  or  public, — i.  e.,  those  which  are  binding 
on  the  whole  community. 

2.  Special  or  private, — i.  e.,  those  operating  on  partic- 
ular individuals  only. 

The  courts  take  judicial  notice  of  the  former ;  the 
latter  must  be  pleaded  specially.4 
Statutes  are  also  divided  into 

1.  Enlarging,  or   enabling   statutes,   which   increase 
the  scope  and  action  of  the  Common  Law. 

2.  Restraining,  or   disabling  statutes,  which   curtail 
the  scope  and  action  of  the  Common  Law.* 

Statutes  are  further  divided  into 
i.  Penal  statutes,  or  those  which  impose  a  penalty 
on  the  wrong-doer  or  violator  of  the  law. 

1  Wilcox  v.  Wood,  9  Wend.  349.     See  Browne  Us.  and  Cus.  13. 
•  Read  v.  Rann,  10  B.  and  C.  440.  3  \Vilb.  St.  L.  8. 

4  i  Bl.  Comm.  36.  *  i  Bl.  Comm.  87. 


4  A  REVIEW   IN   LAW  AND   EQUITY. 

2.  Remedial  statutes,  which  operate  on  the  act  of 
the  wrong-doer  and  not  upon  his  person  or  property, 
and  which  aim  to  place  the  parties  in  statu  quo.1 

A  statute  making  void  a  conveyance  in  defraud  of 
creditors  is  a  remedial  statute,  while  a  statute  imposing 
imprisonment  for  larceny  is  a  penal  statute. 

By  the  INTERPRETATION  of  a  law  is  meant  the  dis- 
covery of  the  meaning  intended  to  be  conveyed  by  the 
signs  and  symbols  employed  in  its  statement.3 

In  the  interpreting  of  laws  the  following  five  points 
are  to  be  considered  :3 

1.  The  words. 

2.  The  context, — i.  e.,  one  portion  of  a  law  may  be 
resorted  to  for  the  explanation  of  another  portion. 

3.  The  subject-matter.     The  subject-matter  of  legis- 
lation often  casts  great  light  .upon  the  legislation  in 
reference  thereto. 

4.  The  effects  and  consequences  of  the  law. 

5.  The  spirit  and  reason  of  the  law. 

By  the  CONSTRUCTION  of  statutes  is  meant  the  opera- 
tion which  statutes  shall  have,  when  their  meaning  is 
ascertained,  upon  the  objects  towards  which  they  are 
directed.4 

The  words  interpretation  and  construction  are  often 
used  interchangeably,  but  the  distinction  just  indicated 
properly  exists.6 

The  following  are  the  general  rules  for  the  construc- 
tion of  statutes : 

i.  In  the  construction  of  remedial  and  enlarging 
statutes  three  points  are  to  be  considered — 

(a).  The  condition  of  the  law  prior  to  the  passage  of 
the  statute. 

J  i  Bl.  Comm.  88  ;  Sutherland  Stat.  Con.  §§  207-208. 

2  Lieber,  Leg.  and  Pol.  Hermeneutics,  u.  3  I  Bl.  Comm.  59. 

4  See  Lieber,  Legal  and  Pol.  Hermeneutics,  44. 

5  Bouvier,  Law  Diet.,  sub.  Construction. 


INTRODUCTION.  5 

(b).  The  mischief. 

(c).  The  proposed  remedy.1 

2.  General  words  following  particular  words  of  enu- 
meration in  a  statute  are  construed  to  apply  only  to 
persons  or  things  belonging  to  the  same  rank  or  class 
as  that  to  which    the    persons  or  things  particularly 
enumerated  belong.2 

3.  Penal  statutes  must  be  construed  strictly, — /.  e., 
they  are  not  to  be  so  extended  as  to  embrace  cases  or 
acts  not  clearly  described  by  their  words.3 

4.  Statutes  against  fraud, — /.  e.,  remedial  statutes, — 
are  to  be  construed  freely.* 

5.  A  statute  must  be   construed  if  possible  so  as  to 
give  force  arid  effect  to  every  part.* 

6.  A  saving  clause,  repugnant  to  the  body  of  a  statute, 
is  void.8 

7.  When  the  common  law  and  a  statute  conflict,  the 
latter  prevails,  as  does  also  the  more  recent  of  two  con- 
flicting statutes.7 

8.  If  a   statute  repealing   a   prior  statute   is   itself 
repealed,    the   first    statute    revives   without    express 
words  to  that  effect.8     This  rule  is  changed  by  statute 
in  many  States. 

9.  Acts  of  a  legislative  body  derogating  from  the 

1  For  Rules  i-io,  see  I  Bl.  Comm.  87  and  cases  cited. 

2  Hill,   ex  parte,    3   C.   and   P.    225  ;   Foster  v.    Blount,   18  Ala. 
687. 

3  Hall  v.  State,  20  Ohio  7  ;  Commonwealth  v.  Keniston,  5  Pick.  420 ; 
United  States  v.  Wiltberger,  5  Wheat.  76. 

4  Vigo's  Case,  21  Wall.  648  :  First  School  District  z-.Ufford,  52  Conn. 
44  ;  Hudler  v.  Golden,  36  N.  Y.  446. 

5  Matter  of  N.  Y.  and  Brooklyn  Bridge,  72  N.  Y.  527-530. 

6  Att'y-Gen.  v.  Water  Works  Co.,  Fitzgibbons   195  ;  Rex.  v.   Jus- 
tices, 2  B.  &  Ad.  818. 

1 1n  re  Hickory  Tree  Road,  43  Pa.  St.  139,  142;  People  v.  Burt,  43 
Cal.  560;  Constantine  v.  Constantine,  6  Ves.  100. 

8  People  v.  Davis,  61  Barb.  456 ;  Commonwealth  v.  Churchill,  2  Met. 
118. 


O  A  REVIEW  IN   LAW  AND   EQUITY. 

power  of  subsequent  legislative  bodies  are  void  ;  i.  e.,  a 
legislature  cannot  adopt  irrepealable  legislation.1 

10.  Acts  of  a   legislative  body  impossible  of   per- 
formance are  void;" 

11.  Every  statute  operates  prospectively  only,  unless 
there  is  a  clear  intent  that  it  shall  act  retrospectively.3 

12.  Statutes  take  effect  at  the  date  of  their  passage 
unless  otherwise  provided.4 

1  Kelley  v.  Oshkosh,  14  Wis.  623;  Thorpe  v.  R.  &  B.  R.R.  Co.,  27 
Vt.  149.  For  limitation  of  this  principle  see  Dartmouth  College  v, 
Woodward,  4  Wheat.  518. 

8  See  Davies  v.  McNeeby,  5  Nev.  369. 

3  i  Kent  Comm.  455  note;  Bartruff  v.  Remey,  15  Iowa  257;  Atkin- 
son v.  Dunlap,  50  Me.  in;  Harvey  v.  Tyler,  2  Wall.  328,  347. 

4  Matthews  v.  Zane,  7  Wheat.  164;  Louisville  v.  Savings  Bank,  104 
U.  S.  469;  Baker  v.  Compton,  52  Texas  252. 


CHAPTER   II. 

GENERAL  OUTLINE. 

The  objects  with  which  the  municipal  law  deals  are 
rights  and  wrongs.  Rights  are  divided  into 

I.  The  rights  of  persons. 

II.  The  rights  of  things. 

The  rights  of  persons  are  divided  into  absolute  rights 
and  relative  rights. 

1.  Absolute  rights  are  those  belonging  to  an  indi- 
vidual by  virtue  of  his  being  a  human  being. 

2.  Relative  rights  are  such  as  belong  to  an  individual 
by  virtue  of  his  being  a  member  of  society. 

Absolute  rights  are  divided  into  three  general  divi- 
sions: 

A.  The  right  of  personal  security. 

B.  The  right  of  personal  liberty. 
C '.  The  right  of  private  property. 

The  right  of  personal  security  consists  in  a  person's 
legal  enjoyment  of  life,  limbs,  body,  health,  and  repu- 
tation. 

(a).  Life  begins  with  conception,  so  far  as  property 
rights  are  concerned;  at  birth,  for  purposes  of  homi- 
cide.1 To  cause  the  death  of  a  child  before  birth  is 
not  a  felonious  homicide,  but  is  known  as  abortion,  and 
is  commonly  punishable  by  fine  and  imprisonment. 

(b).  By  limbs  at  common  law  were  meant  those  por- 
tions of  a  man's  body  which  were  useful  in  either 
offensive  or  defensive  fighting. 

1  I  Bl.  Comm.  130;  Co.  Litt.  36;  See  Hull  v.  Hancock,  15  Pick. 
255;  Harper  v.  Archer,  4  Smedes  and  M.  99. 

(7) 


8  A   REVIEW   IN   LAW  AND   EQUITY. 

Mayhem  is  the  destruction  of  any  of  these  limbs. 

At  common  law  to  bite  off  an  enemy's  ear  was  not 
mayhem,  but  to  knock  out  a  front  tooth  was. 

(c\  The  right  to  the  legal  enjoyment  of  the  body 
is  interfered  with  by  assault  and  battery. 

(d).  The  right  to  the  legal  enjoyment  of  health  is 
most  generally  interfered  with  by  the  maintenance  of 
a  nuisance. 

(e).  The  right  to  the  legal  enjoyment  of  reputation  is 
interfered  with  by  slander,  libel,  or  malicious  prosecution. 

B.  The    right    of  personal  liberty   consists    in   the 
power  of  locomotion  from  one  place  to  another  without 
restraint  except  by  due  course  of  law.     It  is  interfered 
with  by  false  imprisonment. 

C.  The  right  of  private  property  consists  in  the  free 
use  and  disposition  of  property,  as  limited  only  by  the 
law  of  the  land. 

This  right  is  interfered  with  by  any  unlawful  injury 
to  any  form  of  property,  whether  by  breach  of  contract 
or  by  tort. 

An  individual  can  be  lawfully  deprived  of  the  pos- 
session of  his  property  against  his  will  only  in  case  of 
sale  under  legal  process,  or  by  order  of  court,  by  a  sale 
under  a  power  of  sale  in  a  mortgage,  or  by  the  exercise 
of  the  right  of  eminent  domain. 

The  latter  is  the  right  by  which  the  State,  on  the 
ground  of  public  expediency,  can  take  or  authorize  to 
be  taken,  the  private  property  of  individuals  for  public 
use.1  Full  recompense  must,  however,  be  made  to  the 
individual  whose  property  is  thus  taken.* 

Relative  rights  are  chiefly  those  growing  out  of  the 
relation  of 

A.  Husband  and  wife. 

B.  Parent  and  child. 

1  West  River  Bridge  Co.  --.  Dix,  6  How.  536. 

5  See  U.  S.  Cons.  5th  Amend,  and  State  Constitutions. 


GENERAL  OUTLINE.  9 

C.  Guardian  and  ward, 

D.  Master  and  servant. 

Note. — The  principles  governing  the  relations  and 
liabilities  of  the  latter  will  be  stated  under  Agency. 

A.      HUSBAND   AND   WIFE. 

Marriage  is  the  relationship  arising  between  a  man 
and  a  woman  who  agree  to  and  do  live  together  as 
husband  and  wife,  this  agreement  being  made  in  the 
manner  prescribed  by  law.1 

The  contract  to  marry  is  the  contract  by  which  this 
relationship  is  formed.  There  are  three  essentials  to 
every  valid  marriage  contract.4 

(a).   Willingness  to  contract. 

(fr).  Ability  to  contract. 

(c).  An  actual  contracting  in  the  form  prescribed  by 
law. 

There  are  three  disabilities." 

(a).  A  prior  marriage  of  either  of  the  parties,  with 
the  husband  or  wife  still  living  and  not  divorced.  A 
marriage  formed  under  such  circumstances  is  void.'' 

(b\  Nonage  of  either  party.  Such  a  marriage  is  void- 
able only,  and  can  be  ratified  when  the  parties  are  of 
age.6 

The  age  at  which  marriage  can  be  contracted  varies 
in  the  different  States. 

(c).  Insanity  or  idiocy  on  the  part  of  either  party. 
Such  a  marriage  is  void* 

There  must  be  actual  intent  on  the  part  of  the  par- 
ties to  form  the  contract. 

A  marriage  induced  by  duress  or  fraud  is  void."1 

1  See  Bouv.  Law  Diet.,  sub.  Marriage.    See  I  Bish.  Mar.  and   D., 
§  3;  also  Schouler  Dom.  Rel.  §  12. 
*  i  Bl.  Comm.  434  et  seq.  s  I  Bl.  Comm.  436  et  seq, 

4  2  Kent  Comm.  79,  and  cases  cited. 

5  See  i  Bish.  Mar.  and  D.  §  150.  6  2  Kent  Comm.  76. 
'  Schouler  Dom.  Rel.  §  23,  and  cases  cited. 


IO  A   REVIEW   IN   LAW   AND    EQUITY. 

The  performance  of  a  marriage  ceremony  is  evidence 
of  marriage,  but  it  is  not  conclusive,  and  it  may  be  shown 
that  the  ceremony  was  performed  in  jest,  or  that  it  was 
intended  for  private  purposes  and  that  an  actual  mar- 
riage was  not  contemplated.1 

As  a  general  rule,  marriages  valid  in  the  place  where 
formed  are  valid  everywhere,2  unless  they  are  either 
bigamous  or  incestuous* 

The  contract  to  marry  is  not  within  the  Statute  oj 
Frauds,  and  need  not  be  in  writing.4 

Marriages  may  be  dissolved  in  two  ways :  by  death 
and  by  divorce. 

Divorce  is  of  two  kinds:  a  mensa  et  thoro  and  a 
vinculo  matrimonii.  The  latter  works  a  complete  dis- 
solution of  the  marriage ;  the  former  dissolves  the 
marriage  as  far  as  the  parties  themselves  are  concerned, 
but  it  permits  neither  to  remarry  during  the  life  of  the 
other. 

The  causes  for  divorce,  alimony,  its  amount,  etc.,  are 
regulated  by  the  statutes  of  the  different  States,  which 
should  be  carefully  examined  by  students  preparing  for 
the  Bar. 

The  following  are  the  leading  consequences  of  mar- 
riage at  common  law.  They  are  largely  changed  by 
the  statutes  of  the  different  States : 

(a).  In  law  the  husband  and  wife  were  one  person, 
the  existence  of  the  wife  being  merged  in  that  of  her 
husband.  As  she  was  supposed  to  live  under  his  pro- 
tection, she  was  termed  femme  covert,  and  her  condi- 
tion during  marriage  coverture. 

(b).  From  the  unity  of  existence  it  followed  that 
husband  and  wife  could  make  no  control  whatever 

1  Clark  v.  Field,  13  Vt.  460. 

2  2  Kent  Comm.  91,  and  cases  cited. 

8  Id.  93;  see  i  Bish.  Mar.  and  D.  §  372,  and  cases  cited. 
4  Browne  on  Stat.  of  Frauds,  §  2153. 


GENERAL   OUTLINE.  II 

with  each  other.  A  wife  could,  however,  act  as  attorney 
for  the  husband,  and  the  latter  could  make  a  valid  will 
in  favor  of  the  former.1 

(c).  The  husband  is  liable  for  necessaries  furnished  to 
the  wife  when  she  lives  with  him  as  his  wife,  and  when 
he  drives  her  from  his  home  and  refuses  to  support  her. 
He  is  not  liable  for  necessaries  furnished  to  her  when 
she  elopes  and  lives  in  adultery,  if  the  fact  of  the  elope- 
ment be  known  to  the  person  furnishing  the  necessa- 
ries ; 2  nor  if  she  is  living  apart  from  him  under  an 
agreement  for  separate  maintenance,  and  he,  in  accord- 
ance with  the  agreement,  furnishes  her  an  amount 
sufficient  to  provide  her  with  the  necessaries  suitable 
to  her  station,  this  being  known  to  the  party  with 
whom  she  deals.3  This  is  the  prevailing  law  at  present. 

Money  furnished  by  a  third  party  to  a  wife,  though 
expended  for  necessaries,  cannot  be  recovered  from  her 
husband.4 

(d).  At  marriage  the  husband  gained  an  absolute 
title  to  all  the  wife's  personal  property  in  possession, 
with  the  right  to  reduce  her  choses  in  action  to  posses- 
sion, and  to  have  curtcsy  in  her  estates  of  inheritance. 

(e).  The  wife  gained  the  right  to  dower  in  her  hus- 
band's estates  of  inheritance,  and  on  his  death  retained 
her  personal  ornaments,  jewels,  etc.,  as  against  her 
husband's  personal  representatives.  These  were  called 
her  paraphernalia." 

(/).  On  marriage  the  husband  became  liable  for  the 
wife's  debts  contracted  before  marriage,  and  for  her 
torts  committed  during  marriage."  If  the  debts  of  the 
wife  were  not  paid  before  her  death,  however,  the  hus- 
band's liability  ceased.' 

1  I  Bl.  Comm.  442. 

2  I  Bl.  Comm.  443;  see  note  and  cases  cited. 

3  4  Camp.  70;  4  B.  and  A.  254.  4  i  Salk.  387. 

5  2  Bl.  Comm.  435.  6  2  Kent  Comm.  143,  149. 

1  Lamb  v.  Belden,  16  Ark.  539;   Cole  v.  Shurtleff,  41  Vt.  311. 


12  A   REVIEW   IN   LAW   AND   EQUITY. 

The  relation  of  husband  and  wife,  and  the  duties 
arising  from  that  relation,  are  regulated  by  statute  in 
the  different  States. 

These  statutes  should  be  consulted  by  students. 

B.      PARENT   AND   CHILD. 

Children  are  of  two  kinds : 

(a}.  Legitimate,  or  those  born  in  lawful  wedlock  or 
within  a  competent  time  thereafter. 

(b).  Illegitimate,  or  children  born  out  of  wedlock. 

By  the  Civil,  but  not  by  the  Common  law,  the  sub- 
sequent marriage  of  the  parents  legitimatized  children 
born  prior  to  the  marriage,  and  this  principle  has  been 
generally  adopted  in  the  United  States.1 

At  common  law  an  illegitimate  child  could  by  no 
possibility  inherit  any  property,  as  he  was  regarded  as 
the  son  of  nobody. 

In  many  of  the  States  an  illegitimate  child  inherits 
from  his  mother  equally  with  other  children." 

The  mother  of  such  a  child  is  entitled  to  its  custody 
in  preference  to  the  putative  father,  while  in  the  case 
of  legitimate  children  the  father  is  entitled  to  their  cus- 
tody, unless  a  court  decrees  otherwise.3 

The  duties  owed  by  parents  to  legitimate  children 
are  three.4 

(a).  Maintenance. 

(b\  Protection. 

(c).  Education. 

These  duties  cease  on  the  child's  coming  of  age. 

At  common  law  a  man  is  not  obliged  to  support  the 
children  of  his  wife  by  a  former  marriage.5 

1  i  Bl.  Comm.  454,    see  note  ;    Schouler  Dom.   Rel.  §  226.     See 
Miller  v.  Miller.  91  N.  Y.  315. 

2  See  2  Kent  Comm.  212,  213.  3  5  East.  221  ;  7  East.  579. 

4  i  Bl.  Comm.  447  ;  2  Kent  Comm.  189  ;  Schouler  Dom.  Rel.  $5  233. 

5  Williams  v.  Hutchinson,  3  N.  Y.  312  ;  Worcester  v.  Marchant,  14 
Pick.  510  ;  Schouler  on  Dom.  Rel.  §  237,  and  cases  cited. 


GENERAL  OUTLINE.  13 

If,  however,  he  receives  them  into  his  home,  he  is  re- 
garded as  having  adopted  them  as  his  children.1 

There  are  two  rules  as  to  the  parent's  liability  for 
necessaries  furnished  to  a  child. 

1.  It  is  held  that  a  third  party  furnishing  necessaries 
to  a  child  can  recover  from  the  parent  by  merely  prov- 
ing that  the  articles  were  purchased  and  that  they  were 
necessary? 

2.  It  is  held  that  the  party  furnishing  the  articles  must 
show  in  addition  a  promise  on  the  part  of  the  parent, 
either    express    or    implied,  to   pay  for   the   articles. 
Where  this  doctrine  is  held  the  courts  seize  upon  slight 
circumstances  from  which  to  infer  the  promise,  such  as 
seeing  the  child  in  possession  of  the  articles  and  allow- 
ing him  to  keep  and  use  them." 

By  necessaries  are  meant  such  articles  as  are  suitable 
to  the  social  condition  and  rank  in  life  of  him  by  whom 
they  are  used.  The  term  is  purely  relative.*  The 
question  as  to  what  are  necessaries  is  for  the  court  ; 
as  to  whether  particular  necessaries  were  furnished,  and 
the  proper  amount,  for  the  jury.*  Whether  an  article 
is  a  necessary  is  determined,  not  by  reference  to  the 
article,  but  by  reference  to  the  need  of  the  person  for 
that  article.  Clothing  is  abstractly  a  necessary,  but  in 
a  particular  case  a  person  might  not  need  a  suit  of 
clothes.  Here  the  garments  would  not  be  necessaries. 

Education  is  classed  among  the  necessaries." 

1  Sharp  v.  Cropsey,  n  Barb.  224  ;  Luney  v.  Vantine,  40  Vt.  501. 

2  Reynolds  v.   Sweetser,  15   Gray  78  ;    Weeks  v.   Merrow,  40  Me. 
151  ;  Filler  v.  Filler,  33  Pa.  St.  50. 

3  Mortimore  v.  Wright,  6  W.  &  W.  482  ;  Gordon  i\  Potter,  17  Vt. 
350  ;   Raymond  v.  Loyl,   10  Barb.  483  ;    Kelley  v.  Davis,  49  N.  H. 
187.     This  doctrine  is  much  the  stronger  of  the  two,  and  the  weight  of 
authority  is  greatly  in  its  favor.     See  2  Kent.  Comm.  192  ;  Schouler 
Dom.  Rel.  §  241,  and  cases  cited. 

4  Smith  Contr.  269  ;  Schouler  Dom.  Rel.  §  61,  and  cases  cited. 

s  Parke  v.  Kleeber,  37  Pa.  St.  25  ;  Raynes  v.  Bennett,  114  Mass  424. 
6  2  Kent  Comm.  192  ;  Schouler  Dom.  Rel.  gg  411,  412. 


14  A   REVIEW   IN   LAW   AND   EQUITY. 

Torts. — A  father  is  not  liable  in  damages  for  the 
torts  of  his  child,  provided  they  are  committed  without 
his  knowledge  or  consent  and  when  the  child  is  not  in 
his  employment.1 

A  parent  is  justified  in  making  an  assault  and  battery 
for  the  protection  of  the  person  of  a  child.2 

The  parent  is  entitled  to  the  wages  earned  by  the 
child  ;3  but  if  an  employer  has  been  accustomed  to  pay 
the  wages  to  the  child  without  remonstrance  on  the 
part  of  the  parent,  the  consent  of  the  latter  to  such 
payment  will  be  presumed.4 

If  the  parent  has  emancipated  the  child,  the  latter  is 
entitled  to  his  wages,  and  can  recover  them  for  his  own 
use.6 

At  common  law  the  child  owed  no  legal  duties  to 
the  parent.  In  some  States  the  child  is,  by  statute, 
bound  to  support  the  parent  under  certain  circum- 
stances. 

C.      GUARDIAN  AND   WARD. 

There  are  two  kinds  of  guardianship. 

(a).  Guardianship  by  the  common  law. 

(b).  Guardianship  by  statute. 

Guardianship  by  the  common  law  was  of  three  kinds  : 

1.  Guardianship  by  nature,  which  belonged  to  the 
father,  and  on  his  death  to  the  mother,  lasted  till  the 
child  reached  the  age  of  twenty-one,  and  applied  only 
to  the  person. 

Strictly  this  form  of  guardianship  extended  only  to 
the  heir  apparent. 

2.  Guardianship  by  nurture,  belonging  first  to  father, 
then  to  mother,  extending  only  to  the  age  of  fourteen. 

1  Schouler  Dom.  Rel.  §  263.  2  I  Bl.  Comm.  450. 

3  i  Bl.  Comm.  453  ;  Schouler  Dom.  Rel.  §  252,  and  cases  cited. 

4  Campbell  v.  Cooper,  34  N.  H.  49  ;  Armstrong  v.  McDonald,  10 
Barb.  300  :  Atkins  ?>.  Sherbino,  58  Vt.  248. 

6  See  Schouler  Dom.  Rel.  §  268,  and  cases  cited. 


GENERAL   OUTLINE.  15 

Strictly  this  form  of  guardianship  applied  only  to  the 
younger  children  who  were  not  heirs  apparent. 

3.  Guardianship  in  socage,  which  applied  only  to  lands 
acquired  by  the  infant  by  descent,  which  guardianship 
was  given  to  the  next  of  kin,  who  could  not  possibly 
inherit  from  the  infant — i.  e.,  the  uncle  on  the  mother's 
side,  when  the  property  descended  to  the  infant  from 
the  father. 

This  guardianship  lasted  to  the  age  of  fourteen,  when 
the  infant  had  the  right  of  choosing  a  guardian.1 

Guardianship  by  statute  is  of  two  kinds  : 

1.  When  in  accordance  with  the  provisions  of  a  stat- 
ute a  guardian  is  appointed  by  the  court. 

2.  Testamentary  guardianship,  when  by  testament  a 
parent  appoints  a  guardian  for  a  child,  as  he  was  per- 
mitted to  do  by  the  statute  of  12  Charles  II.  (1660), 
and  as  he  may  now  do  by  statute  in  this  country. 

The  common  law  guardianships  are  now  practically 
obsolete. 

The  duties  of  a  guardian  to  the  ward  are  those  of 
parent  to  child,  and  in  addition  he  has  control  of  the 
infant's  property  and  is  held  rigidly  to  account  for  his 
management  thereof.2 

The  general  rule  is  that  the  guardian  is  held  to  abso- 
lute good  faith  in  all  his  dealings  with  his  ward,  and 
that  in  his  treatment  of  the  ward's  property  he  shall 
exercise  all  the  care  and  circumspection  of  a  prudent 
man  in  the  management  of  his  own  concerns.3  He  is 
permitted  to  make  no  profit  from  the  estate  of  the 
ward,  though  the  courts  allow  a  reasonable  recompense 
for  his  services  out  of  the  estate.  He  is  not  permitted 
to  speculate  with  the  funds  of  the  ward,  even  in  good 
faith  and  for  the  benefit  of  the  ward's  estate,  and  is 
personally  liable,  together  with  his  bondsmen,  for  any 

1  See  2  Kent  Comm.  220-222.  ?  See  Schouler  Dom.  Rel.  §  320. 

3  Bispham  Eq.  §  234  ;  Schouler  Dom.  Rel.  §  345- 


l6  A   REVIEW   IX   LAW   AND   EQUITY. 

loss  arising  from  such  speculation.1  The  guardian's  ac- 
counts are  regulated  by  the  statutes  of  the  different 
States. 

When  an  infant  is  sued,  a  guardian  ad  litem  is  ap- 
pointed by  the  court,  generally  the  infant's  father,  or 
the  statutory  guardian. 

When  an  infant  brings  suit,  it  is  brought  in  the  name 
of  the  next  friend  (prochien  ami),  who  is  generally 
either  a  parent  or  guardian. 

1  2  Kent  Comm.  329  et  seq. ;  2  Comyns  230. 


CHAPTER   III. 

THE   FEUDAL   SYSTEM— ENGLISH   TENURES. 

THE  Feudal  system  was  developed  on  the  continent 
of  Europe,  in  the  centuries  succeeding  the  downfall  of 
the  Western  Roman  Empire,  by  the  Celtic  and  Teu- 
tonic tribes,  whose  kingdoms  were  built  upon  the  ruins 
of  that  empire.  Its  essential  feature,  from  which  its 
chief  peculiarities  sprang,  was  the  holding  of  land  by 
one  person,  called  the  tenant,  from  another,  called  the 
lord. 

A  feudal  chief,  upon  conquering  the  territory  of  a 
hostile  tribe,  distributed  the  land  among  his  followers, 
to  be  held  on  various  conditions.  Originally  these 
lands  were  held  at  the  will  of  the  lord,  and  the  grant 
could  be  revoked  at  his  pleasure.  Then  in  time  the 
estates  came  to  be  held  for  the  life  of  the  tenant,  upon 
his  conforming  to  the  conditions  of  the  grant,  and 
finally  they  became  hereditary.  The  ceremony  by 
which  a  tenant  became  possessed  of  an  estate  was 
called  investiture,  and  when  this  occurred  the  tenant 
took  the  oath  of  fealty  or  profession  of  faith  to  the 
lord,  and  also  did  homage,  by  which  he  professed  that 
he  became  the  man — i.  e.,  the  follower — of  his  lord. 
Fealty  and  homage  were  the  two  prerequisites  to  a 
tenant's  entering  an  estate  of  a  lord.1 

The  system  was  introduced  into  England  at  the 
time  of  the  Conquest  by  William,  A.D.  1066. 

Under  this  system  all  property  other  than  personal 
was  held  of  some  superior  on  condition  of  rendering 

1  See  I  Guizot  His.  of  Civ.  63  et  seq. ;  Hallam's  Middle  Ages. 

(17) 


1 8  A   REVIEW   IN   LAW   AND   EQUITY. 

certain  services.  The  thing  thus  held  was  called  a 
tenement  or  feud;  the  manner  of  holding,  a  tenure;  the 
person  who  held,  a  tenant  or  vassal.  The  king  was 
called  the  lord  paramount ;  those  who  held  immedi- 
ately of  the  king  were  called  tenants  in  capite ;  those 
who  held  of  a  superior  and  were  also  themselves  lords 
of  inferiors  were  called  mesne  or  middle  lords ;  while 
the  lowest  tenant,  who  had  no  one  holding  of  him, 
was  called  the  tenant  paravail. 

Before  the  introduction  of  the  feudal  system  lands 
held  of  no  superior  were  called  allodial,  and  this  is  the 
form  which  ownership  of  land  practically  takes  in  the 
United  States.1 

Under  the  feudal  system  there  grew  up  in  England 
four  principal  forms  of  tenure,  distinguished  by  their 
character  in  respect  to  quantity  and  quality  of  the 
service  due  from  the  tenant  to  the  lord.2 

I.  Knight  service,  in  which  the  service  \vasfree, — i.  e., 
such  as  was  becoming  a  free  man, — and  uncertain. 

This  tenure  prevailed  most  extensively  until  it  was 
abolished  by  the  statute  of  12  Charles  II.  (1660) 

There  were  seven  incidents,  or  duties  due  from  the 
tenant  to  the  lord,  connected  with  knight  service.3 

1.  Aids,  which  were  principally  three: 

A.  To  ransom  the  lord's  person  when  captured. 

B.  To  furnish  money  for  knighting  his  eldest  son. 

C.  To  furnish  money  for  a  marriage  portion  for  his 
eldest  daughter. 

2.  Relief,  a  certain  amount  which  the  heir  was  com- 
pelled to  pay  the  lord   before  entering  on  his  inherit- 
ance. 

3.  Primer  seisin,  a  kind  of  relief  due  from  the  heirs 
of  tenants  in  capite,  consisting  of  one  year's  value  of 
the  estate  if  entered   upon   immediately,  and   of  six 

1  3  Kent  Comm.  513.  2  2  Bl.  Comm.  60. 

3  2  Bl.  Comm.  62;  3  Kent  Comm.  504. 


THE   FEUDAL   SYSTEM — ENGLISH   TENURES.         19 

months'  value  if  the  lands  were  in  reversion,  expectant 
upon  a  life  estate. 

4.  Wardship,  or  right  of  having  the  custody  of  the 
person  and   lands  of   the  heir  without  rendering   an 
account  for  the  profits,  if  the  heir,  being  a  male,  was 
under  twenty-one,  or,  being  a  female,  under  fourteen. 
In  the  latter  case  the  guardianship  extended  to  the 
age  of  sixteen. 

5.  Marriage,  or  the  right  of  giving  an  infant  ward 
in  marriage,  and  if  he  or  she  declined  the  proffered 
match,  of  deducting  from  the  ward's  estate  the  amount 
which  the  suitor  offered  the  lord  forgiving  the  ward  in 
marriage. 

In  case  of  elopement  and  marriage  the  ward  forfeited 
to  the  lord  double  the  value  of  the  marriage,  as  assessed 
by  a  jury. 

6.  Fines,  or  the  right  to  exact  from  the  tenant  a 
certain  sum  for  permission  to  alienate  his  feud. 

The  lord  could  not  alienate  his  seignory  without  con- 
sent of  the  vassal,  and  this  consent  was  called  attornment. 

By  magna  charta  and  the  statute  quia  emptores, 
18  Edw.  I.  (1292),  tenants  were  able  to  alienate  the 
whole  of  their  estate,  to  be  holden  of  the  same  lord 
from  whom  they  themselves  held  it. 

7.  Escheat,  by  which,  on  the  extinction  of  inherit- 
able blood  on  the  part  of  the  vassal,  the  estate  es- 
cheated or  reverted  to  the  lord. 

Tenure  by  grand  sergcanty  was  a  species  of  knight 
service  by  which  the  tenant  was  bound,  instead  of 
rendering  general  military  service,  to  do  some  special 
act,  as  carrying  the  banner  or  sword  of  his  lord. 

II.  Free  and  Common  Socage,  in  which  the  service 
was  free*  but  certain.  In  the  certainty  of  the  service 
lay  its  superiority  over  knight  service.  Free  and  com- 
mon socage  includes  tenure  by  petit  sergeanty,  gavel- 
kind,  and  borough  English. 


2O  A   REVIEW   IN   LAW   AND   EQUITY. 

In  petit  sergeanty  the  service  consisted  in  rendering 
to  the  lord  annually  some  small  implement  of  war. 

Gavelkind  prevailed  most  extensively  in  the  county 
of  Kent,  and  its  four  marked  peculiarities  show  it  to 
be  a  tenure  existing  prior  to  the  conquest.1 

1.  Lands  held  in  gavelkind  descended  to  all  tJie  sons 
alike. 

2.  Lands  could  be  devised  prior  to  the  Statute  of 
Wills. 

3.  The  holder  could  alienate  by  feoffment  at  the  age 
of  fifteen. 

4.  The  estate  did  not  escheat  in  case  of  attainder  for 
treason. 

Borough  English  was  free  and  common  socage  as 
existing  in  certain  boroughs  and  towns.  Its  distin- 
guishing feature  was  that  the  land  so  held  descended 
to  the  youngest  son.2 

III.  Pure  villenage,  in  which  the  service  was  base 
and  uncertain. 

Copyhold  estates  developed  from  this  form  of  tenure.3 

In  pure  villenage  the  tenants  were  barely  tenants  at 
will,  holding  merely  by  the  sufferance  of  the  lord,  who 
was  in  many  cases  their  owner.  In  process  of  time,  as 
son  succeeded  father,  the  right  of  the  tenants  strength- 
ened and  the  estates  became  in  some  cases  estates  for 
life,  and  in  others  estates  of  inheritance.  They  were 
still  regarded  as  estates  held  at  the  will  of  the  lord, 
but  that  will  was  not  the  arbitrary  caprice  of  any  indi- 
vidual lord,  but  it  was  the  will  of  the  lord  as  deter- 
mined by  the  immemorial  custom  of  the  manor, — a 
manor  being  a  large  estate  held  by  a  powerful  lord, 
some  of  whose  land  was  held  in  knight  service,  other 
in  socage,  etc. 

This  custom  of  the  manor  was  determined  by  the 

1  2  Bl.  Comm.  84.  2  2  Bl.  Comm.  83.  8  Id.  qoetsey. 


THE   FEUDAL   SYSTEM — ENGLISH   TENURES.        21 

copy  of  court  roll,  kept  in  the  court  of  the  manor  in 
which  the  land  held  in  copyhold  lay.  If  this  record 
showed  that  heir  had  succeeded  ancestor  immemori- 
ally,  this  succession  was  presumed  to  be  the  will  of 
the  lord,  and  the  estate  was  thus  practically  one  of 
inheritance.1 

The  incidents  of  the  copyhold  tenure  were : 

1.  Fealty. 

2.  Services. 

3.  Relief. 

4.  Escheat. 

5.  Her  lots,  or  the  right  which  the  lord  had,  on  the 
death  of  his  tenant,  to  the  tenant's  best  beast  or  other 
personal  property. 

IV.  Privileged  villenage,  in  which  the  services  were 
base  but  certain,   out  of    which  grew   the    tenure  in 
Ancient  Demesne? 

This  applied  to  certain  lands  which  were  actually  in 
the  hands  of  the  crown  in  the  time  of  William  the 
Conqueror,  or  Edward  the  Confessor,  and  which  were 
granted  to  be  held  on  condition  of  services  which, 
though  base,  were  certain. 

V.  A   fifth   form    of  tenure   also   existed,  frankal- 
moign,  under  which  religious  corporations  held  lands 
of  the  donor  to  them  and  their  successors  forever.3 

The  services  of  this  tenure  were  not  strictly  defined, 
but  were  ordinarily  to  pray  for  the  soul  of  the  deceased 
and  others  of  like  nature. 

By  the  statute  of  12  Charles  II.  (1660)  all  forms  of 
tenure  were  changed  to  FREE  AND  COMMON  SOCAGE, 
with  the  exception  of  estates  held  by  copyliold,  frank- 
almoign,  and  grand  sergeanty* 

1  2  Bl.  Comm.  98.  »  Id.  98. 

3  2  Bl.  Comm.  101.  *  Id.  77. 


CHAPTER   IV. 

REAL    PROPERTY. 
Property  is  of  three  kinds, — REAL,  PERSONAL,  and 

MIXED. 

Real  property  is  anything  of  a  fixed,  immovable, 
and  permanent  nature.  It  is  divided  into  three  classes: 
lands,  tenements,  and  hereditaments.1 

I.  Land  comprehends    all  things  of  a  permanent, 
immovable,  and  substantial  nature.     It   has  an  indef- 
inite extent  upward  and  downward  from  the  surface  of 
the  earth.     It  also  includes  all  things  attached  perma- 
nently to   the   soil.2     In  conveying   land    covered   by 
water,  it   should  be  described  as  such.     A  grant  of  a 
body  of  water  conveys  a  right  of  fishery  only. 

The  word  land  is  construed  broadly,  while  other 
words  sometimes  used  in  conveying  land,  as  messuage, 
toft,  etc.,  are  construed  strictly? 

II.  Tenement  is  a  broader  term  than  land,  and  in- 
cludes anything  which  can  be  held  by  any  species  of 
tenure.     It  applies  to  many  incorporeal  hereditaments, 
as  advowsons,  ways. 

III.  Hereditament  is  a  broader  term  than  either  land 
or  tenement,  and  includes  anything  which  may  be  in- 
herited, such  as  heirlooms  or  title-deeds.4 

Hereditaments  are  of  two  kinds — corporeal  and  in- 
corporeal. The  term  corporeal  hereditaments  is  nearly 
synonymous  with  land.6 

1  2  Bl.  Comm.  14;  3  Kent  Comm.  401.  2  Co.  Litt.  43. 

3  2B1.  Comm.  15  etseg.;  3  Kent 401  etseq.;  Tiedeman  Real  Prop.  §  2. 

4  2  Bl.  Comm.  17;  Tiedeman  Real  Prop.  §  n. 

5  2  Bl.  Comm.  17;  3  Kent  Comm.  401. 

(22) 


REAL   PROPERTY.  23 

Incorporeal  hereditaments  are  rights  issuing  out  of 
a  thing  corporate,  whether  real  or  personal,  or  concern- 
ing or  exercisable  within  the  same.  They  are  of  ten 
kinds.1 

1.  Advowsons,  or  the  right  of  filling  a  vacancy  in 
some  church  or  ecclesiastical  benefice. 

2.  Tithes,  or  the  right  of  exacting  from  tenants  a 
tenth  of  the  increase  arising  from  lands,  the  stock  upon 
lands,  and  from  their  own  personal  labor. 

3.  Common,  or  the  profit  which  one  man  has  in  the 
lands  of  another.     The  four  ordinary  commons  were: 

(a).  Pasturage,  or  the  right  of  feeding  one's  beasts 
on  another's  land.  This  was  of  four  kinds  :  appendant, 
when  the  tenants  of  a  lord  pastured  their  cattle  on  land 
belonging  to  their  lord ;  appurtenant,  when  the  ten- 
ants pastured  their  cattle  on  the  land  of  a  lord 
other  than  their  own ;  because  of  vicinage,  when  the 
inhabitants  of  two  villages  mutually  intercommoned 
through  ignorance  of  the  true  boundary ;  in  gross,  which 
was  a  right  belonging  to  some  person  and  his  heirs,  and 
involving  no  ownership  of  land  by  such  person. 

(b).  Piscary,  or  the  right  of  fishing  in  water  belong- 
ing to  another. 

(c\  Turbary,  or  the  right  of  digging  turf  from  the 
land  of  another. 

(d\  Estovers,  or  the  right  of  taking  wood  used  for 
fuel,  the  repair  of  buildings,  the  implements  of  hus- 
bandry, or  fences,  from  land  belonging  to  another.4 

4.  Ways,  or  the  right  of  going  over  another  man's 
land. 

5.  Offices,  or  the  right  to  exercise  some  public  or 
private  employment,  such  as  the  office  of  keeping  the 
crown  jewels.     This  is  an  instance  of  an  incorporeal 
hereditament  issuing  out  of  personal  property. 

1  2  Bl.  Comm.  IQ  et  seq. 

*  See  Livingston  v.  Ten  Broek,  16  Johns.  14. 


24  A   REVIEW   IN   LAW   AND   EQUITY. 

6.  Dignities,  or  the  right  to  use  some  title  of  no- 
bility. 

7.  Franchises,  or   rights  granted    by  the  supreme 
power  of  the  State  to  a  person  or  persons,  which  could 
not  be  claimed  as  a  matter  of  right. 

8.  Corodies,  or  the  right   to  receive   allotments  of 
provisions  for  one's   maintenance.     When    a  definite 
sum  of  money  was  substituted  the  term  pension  was 
used. 

9.  Annuities,  or  a  yearly  sum  granted   by  one   to 
another,  and   chargeable   only  on   the  person  of  the 
grantor.     This  does  not  mean  that  in  event  of  non- 
payment the  annuitant  cannot  sue  and  attach  the  real 
property  of  the  grantor,  but  simply  that  he  cannot  look 
to  any  particular  piece  of  land  to  satisfy  his  claim,  as 
can  be  done  in  the  case  of 

10.  Rents,  which  are  definite  profits  issuing  yearly 
out  of  lands  and  tenements.     At  common  law  there 
were  three  common  forms  of  rent : 

(a).  Rent  service,  which  had  some  corporal  service 
incident  to  it,  such  as  ploughing  the  lord's  land. 
In  this  rent  the  landlord,  in  case  of  non-payment, 
had  the  right  of  distress — i.  e.,  of  entering  on  the 
land  and  taking  any  personal  property  which  he 
could  find  for  the  satisfaction  of  his  claim — no 
special  clause  reserving  this  right  being  needed  in  the 
lease. 

(b}.  Rent  charge,  where  the  owner  of  the  rent  had 
no  future  interest  or  reversion  in  the  land,  as  where  A 
conveys  to  B  in  fee  simple,  reserving  to  himself  and 
his  heirs  a  certain  rent  payable  out  of  the  lands  so 
conveyed.  This  is  called  a  rent  charge  because  in  the 
deed  creating  it  there  is  a  clause  giving  the  right  of 
distress. 

(c}.  Rent  seek  is  a  rent  reserved  by  deed,  without  any 
clause  of  distress. 


REAL   PROPERTY.  25 

EASEMENTS. 

Most  of  the  incorporeal  hereditaments  are  obsolete. 
In  modern  law  easements  correspond  to  incorporeal 
hereditaments  in  a  general  way.  An  easement  is  the 
right  by  which  the  owner  of  one  tenement,  called  the 
dominant  tenement,  can  compel  the  owner  of  another, 
called  the  servient  tenement,  to  permit  something  to 
be  done,  or  to  refrain  from  doing  something,  which,  as 
owner  of  his  tenement,  he  would  otherwise  have  been 
entitled  to  restrain  or  to  do.:  It  differs  from  a  com- 
mon, which  is  sometimes  called  a  profit  a  prendre,  in 
that  the  latter  always  involves  the  taking  of  some  ma- 
terial thing  from  the  land  of  another.2 

An  easement  may  be  created  in  three  ways :  (a). 
By  grant.  (b\  By  prescription,  which  always  implies 
a  grant,  (c).  By  necessity,  as  when  A  conveys  to  B 
land  entirely  surrounded  by  other  land  of  A.  Here 
B  has  a  right  of  way  over  the  land  of  A.3 

A  license  is  an  authority  to  do  an  act  or  a  series  of 
acts  upon  another's  land,  without  possessing  any  estate 
therein.4 

An  easement  differs  from  a  license  in  three  particulars : 

(a).  An  easement  is  an  interest  in  land ;  a  license  cre- 
ates no  interest. 

(b).  An  easement  cannot,  therefore,  be  created  byparol, 
as  coming  within  the  statute  of  frauds  ;  a  license  can. 

(c).  An  easement  is  irrevocable,  but  a  license  can  be 
revoked  by  the  licensor  when  its  revocation  would  do 
no  injury  to  the  licensee,  the  lack  of  consideration  be- 
ing the  ground  of  the  right  of  revocation.6 

1  2  Bl.  Comm.  360.    (Cooley)  and  cases  cited.     See  Bouvier,  Law 
Diet.,  sub.  Easements,  and  cases  cited. 
*  2  Wash.  R.  P.,  Bk.  II.  *26. 

3  Wash.  Easem.  §§  3,  4;  3  Kent  Comm.  419  (note  I3th  ed.). 

4  i  Wash.  R.  P.  *3Q8  ;  3  Kent  Comm.  452. 

5  Wash.  Easm.  *5. 


26  A   REVIEW   IN   LAW   AND    EQUITY. 

The  following  are  the  most  important  easements  : 
the  right  of  way,  light  and  air,  water,  lateral  support, 
and  party  walls} 

1.  There  are  two  kinds  of  ways,  public  and  private. 
A  public  way  may  be  established  in  two  ways  : 

(a).  By  dedication  by  the  owner,  followed  by  accept- 
ance by  the  public  through  the  acts  of  the  proper 
authorities,  (fr).  By  an  appropriation  of  the  land  for 
the  public  use  by  the  right  of  eminent  domain? 

As  a  general  rule,  the  owner  of  land  bounded  on  a 
public  way  has  a  fee  to  the  centre  of  the  street,  subject 
to  the  public's  easement  of  a  right  of  passage  over  the 
way.3 

A  private  way  is  either  a  right  in  gross — i.  e.,  a  per- 
sonal right — or  it  is  appurtenant  to  an  estate  and  passes 
with  the  conveyance  of  the  estate. 

A  right  of  way  does  not  of  itself  involve  the  right  to 
have  the  way  kept  in  repair,  and  trespass  on  other  land 
of  the  owner  of  the  servient  estate  when  the  way  is  out 
of  repair  is  permissible  only  when  there  is  a  right  on 
the  part  of  the  owner  of  the  dominant  estate  to  have 
the  way  kept  in  repair.4 

2.  The  easements  of  lig/u  and  air  are  the  rights  to 
enjoy  light  and  air  coming  laterally  across  the  land  of 
an  adjacent  owner,  without  interference  on  his  part  by 
the  erection  of  buildings,   etc.     These  easements  are 
not  generally  recognized  in   this  country,  though  they 
may  be  acquired  by  express  grant.6 

3.  When  land  is  bounded  on  a  non-navigable  stream, 
the  title  of  the  owner,  unless  expressly  limited  other- 
wise, extends  to  the  middle  of  tlie  stream,  and  conse- 
quently he  has  an  easement  in  the  water — i.  e.,  a  right 

'  2  Wash.  R.  P.,  Book  II.  *2$.         *  z  Bl.  Comm.  35  note  (Cooley). 

3  3  Wash.  R.  P.  *635  ;  Gardiner  -/.  Tisdale,  2  Wis.  153. 

4  Washburn  Easm.  *IQ7  et  seq.,  *s64. 

5  2  Wash.  R.  P.,  Bk.  II.  *62. 


REAL   PROPERTY.  2/ 

to  use  the  water  in  any  way  which  does  not  interfere 
with  the  rights  of  riparian  owners  lower  down.  Dams 
may  be  built,  provided  they  cause  no  permanent  dimi- 
nution in  the  volume  of  the  stream.  The  water  may 
be  turned  aside  for  manufacturing  purposes,  provided 
it  be  returned  to  the  channel  of  the  stream  in  such  a 
condition  and  in  such  an  amount  as  not  to  affect  the 
rights  of  other  riparian  owners.1 

Xo  right  of  action  arises  from  any  change  in  subter- 
ranean watercourses  affecting  springs  or  wells  on  one 
man's  land  and  caused  by  excavations  on  the  land  of 
another. 

One  man  has  no  right  by  the  artificial  arrangement 
of  the  surface  of  the  soil  to  cause  surface  water  to  flow 
on  the  land  of  another,  but  there  is  no  action  for  any 
damage  arising  from  the  flow  of  such  surface  water  ac- 
cording to  the  natural  configuration  of  the  soil.2 

4.  The  easement  of  support  is  the  right  to  the  natu- 
ral support  of  one's  land  by  the  adjacent  land  of  an- 
other.    There  is  no  easement  for  the  support  of  build- 
ings, though  as  a  general  rule  such  an  easement  can  be 
acquired  by  prescription.3 

5.  In  a  party  wall  the  rule  in  regard  to  ownership  is 
that  each  party  owns  in  fee  to  the  middle  of  the  wall, 
with  an  easement  for  support  in  the  other  half,  when  the 
wall  stands  partly  on  the  land  of  each.     If  a  party  wall 
needs  repair,  the  owner  repairing  can  recover  a  pro- 
portionate part  of  the  expense  from  his  neighbor,  upon 
showing  that  there  was  need  of  repair.    If  one  house  has 
been  supported  by  beams  resting  in   the  house  of  an- 
other, an  easement  for  the  support  of  the  beams  may 
be  acquired  by  prescription.4 

1  3  Kent  Comm.  439  et  scq.\  2  Wash.  R.  P.,  Bk  II.  *&4. 

•  2  Wash.  R.  P.,  Bk.  II.  *6g,  and  cases  cited. 

3  Id.  *74,  *77.  4  Id.  *48. 


CHAPTER    V. 

FREEHOLDS   OF  INHERITANCE. 

THE  word  ESTATE  denotes  an  interest  in  lands,  tene- 
ments, or  hereditaments.1 

A  freehold  is  an  estate  of  inheritance,  or  for  life.  It 
is  also  defined  as  an  estate  requiring  livery  of  seisin  for 
its  creation.2  Seisin,  though  often  equivalent  to  pos- 
session, is  not  synonymous  with  it,  but  signifies  the 
possession  or  right  of  possession,  immediate  or  expect- 
ant, of  a  freeholder* 

Estates  of  inheritance  are  divided  into  four  classes — 
estates  in  fee  simple,  base  or  qualified  fees,  conditional 
fees,  and  fees  tail. 

1.  An  estate  in  fee  simple  is  the  largest  estate  that 
can  exist  in  lands,  tenements,  or  hereditaments.     It  is 
an  estate  conveyed  to  a  man  and  his  heirs  forever.     At 
common  law  the  word  heirs  was  necessary  to  create  an 
estate  in  fee  simple  by  deed,  and  no  other  term  could 
be  used  in  its  stead.     This  rs  still  the  rule  in  many 
States.     There  were,  however,  five  exceptions  to  the 
rule:     (i)    in   devises;    (2)    in  grants    to   corporations 
where  the  word  successors  was  used  instead  of  heirs ; 
(3)  in  fines   and   common   recoveries ;    (4)    in  writs  of 
nobility  ;  (5)  in  grants  to  the  king* 

2.  A  base  or  qualified  fee  is  one  which  has  some  qual- 
ification annexed  thereto,  and  which  must  terminate 

1  2  Bl.  Comm.  103;  i  Preston  on  Estates,  20. 
8  4  Kent  Comm.  24;  2  Bl.  Comm.  104. 

3  This  definition  is  submitted  as  accurate,   though,  so  far  as  the 
writer  knows,  it  has  never  been  given  in  precisely  this  form. 

4  2  Bl.  Comm,  108. 

(28) 


FREEHOLDS   OF   INHERITANCE.  29 

whenever  the  qualification  terminates — as  a  grant  to 
A  and  his  heirs,  tenants  of  the  manor  of  Dale. 

3.  A  conditional  fee  was  a  fee  restrained  to  some  par- 
ticular heirs,  as  to  the  heirs  of  a  man's  body.  It  was 
so  called  because  of  the  implied  condition  that  if  the 
grantee  died  without  the  specified  heirs,  the  estate 
should  revert  to  the  grantor.  Upon  the  birth  of  the 
specified  issue,  the  courts,  eager  to  encourage  freedom 
in  the  alienation  of  estates,  construed  the  estate  as  be- 
ing an  absolute  fee  simple  in  three  respects :  (i)  for 
the  purpose  of  alienation,  so  as  to  bar  heirs  and  rever- 
sioner ;  (2)  for  the  purpose  of  forfeiture  for  treason ; 
(3)  for  the  purpose  of  charging  the  estate  with  incum- 
brances. 

As  a  result,  upon  the  birth  of  issue,  the  grantee 
alienated  the  estate  to  some  person  who  at  once  recon- 
veyed  it  to  the  grantee,  thereby  vesting  in  him  an  es- 
tate in  fee  simple  and  defeating  the  intention  of  the 
grantor.1 

Through  the  influence  of  the  nobility,  who  wished, 
by  tying  up  estates  in  their  own  families,  to  prevent 
free  alienation,  the  statute  de  donis  conditionalibus  was 
passed  (13  Edw.  I.),  which,  operating  on  conditional 
fees,  produced 

4.  Estates  tail.  This  statute  enacted  that  thence- 
forth the  will  of  the  donor  be  observed  in  conditional 
fees,  and  that  the  tenements  given  to  a  man  and  the 
heirs  of  his  body  should  in  any  event  go  to  the  issue, 
if  there  were  any ;  otherwise,  that  they  should  revert  to 
the  donor.  This  statute  operated  for  two  hundred 
years,  until  in  the  twelfth  year  of  Edward  IV.,  in  Tal- 
tarums  case?  a  common  recovery  was  held  to  be  a  bar 
to  an  estate  tail. 

Estates  tail  are  of  no  practical  consequence  in  this 

1  2  Bl.  Comm.  no  et  seq.  \  4  Kent  Comm.  n. 

*  Year  Book  12  Edw.  IV.  14,  19;  see  4  Kent  Comm.  13. 


30  A   REVIEW   IN   LAW   AND   EQUITY. 

country,  where,  as  a  rule,  they  can  be  barred  by  a  con- 
veyance in  fee.1 

In  the  creation  of  an  estate  tail  the  word  heirs  was 
necessary,  and  also  the  expression  of  the  body,  or  some 
other  words  of  procreation.  Estates  tail  are  of  two 
kinds:  (i).  General,  as  to  a  man  and  the  heirs  of  his 
body.  (2).  Special,  as  to  a  man  and  some  particular 
heirs  of  his  body,  as  to  those  from  his  wife  A  begotten. 

Estates  tail  general  are  of  two  kinds:  (i).  Male,  as 
to  a  man  and  the  heirs  male  of  his  body ;  (2).  Female, 
as  to  a  man  and  the  heirs  female  of  his  body. 

Estates  tail  special  are  of  two  kinds  :  (i).  Male,  as  to 
a  man  and  the  heirs  male  of  his  body  by  his  wife  A  be- 
gotten ;  (2).  Female,  as  to  a  man  and  the  heirs  female 
of  his  body  by  his  wife  A  begotten.8 

Frankmarriage  was  a  species  of  estate  tail,  where 
one  man  conveyed  tenements  to  another  upon  the  lat- 
ter's  marriage  with  the  former's  daughter  or  cousin.3 
The  word  frankmarriage  was  the  operative  word  in  the 
conveyance,  and  created  in  the  grantee  an  estate 
tail  special,  without  words  of  procreation. 

There  are  four  incidents  to  estates  tail:  (i)  The 
tenant  in  tail  could  commit  waste;  (2)  curtesy ;  (3) 
dower ;  (4)  they  could  be  barred  by  fines,  common  re- 
coveries, and  by  a  lineal  warranty  descending  with  as- 
sets to  heirs. 

1  See  4  Kent  Comm.  14;  i  Wash.  R.  P.  *&4,  note  (sth  ed.). 

2  2  Bl.  Comm.  113  ft  seq. 
8  Id.  115. 


CHAPTER    VI. 

FREEHOLDS  NOT  OF  INHERITANCE. 

Freehold  estates  not  of  inheritance  are  of  two 
classes — conventional,  or  those  created  by  act  of  the 
parties ;  legal,  or  those  created  by  law.1 

Conventional  estates  are  divided  into  two  classes — 
those  to  be  held  by  the  lessee  during  his  own  life,  and 
those  to  be  held  by  the  lessee  during  the  life  of  an- 
other. In  the  second  class,  the  lessee  was  called  the 
tenant  pur  attire  vie,  and  the  person  during  whose  life 
the  estate  was  to  be  held  the  cestui  que  vie.  If  the 
tenant  died  before  the  cestui  que  vie,  the  estate  could 
not  go  to  his  heirs,  not  being  an  estate  of  inheritance ; 
it  could  not  go  to  the  personal  representatives,  as  it 
was  not  a  chattel  interest.  Therefore,  by  the  ancient 
common  law  the  first  taker  had  the  right  to  hold  the 
estate  during  the  remainder  of  the  life  of  the  cestui  que 
vie.  This  was  the  only  instance  at  common  law  where  a 
title  to  real  property  could  be  acquired  by  occupancy. 

If  the  grant  was  to  a  man  and  his  heirs,  to  hold  dur- 
ing the  life  of  another,  then,  in  event  of  the  tenant's 
dying  before  the  cestui  que  vie,  the  heirs  held  as  special 
occupants. 

The  right  of  occupancy  was  destroyed  by  statute  29 
Charles  II.,  which  enacted  that  where  there  was  no 
special  occupant,  the  tenant  per  autre  vie  could  devise 
the  estate ;  otherwise  that  it  should  go  to  his  personal 
representatives.2 

1  2  Bl.  Comm.  119;  i  Wash.  R.  P.,  p.  120  (sth  ed.). 
8  2  Bl.  Comm.  257. 


32  A   REVIEW   IN   LAW   AND   EQUITY. 

There  are  three  incidents  pertaining  to  all  life  es- 
tates, of  whatever  nature:  I.  Estovers,  or  the  right  of 
the  tenant  to  cut  and  use  wood  for  the  purposes  stated 
on  page  23.' 

2.  Emblements,  which  are  the  annual  crops  brought 
to  maturity  by  the  labor  of  the  tenant.     Grass,  fruit, 
etc.,  are  not  emblements.      When  the  termination  of 'the 
tenancy  could  not  have  been  foreseen,  and  ^vas  not  occa- 
sioned by  his  own  act,  the  tenant  or  his  personal  repre- 
sentatives are  entitled  to  emblements :  as,  in  an  estate 
to  A  for  life,  if  A  dies  before  the  emblements  are  gath- 
ered, his  personal  representatives  would  be  entitled  to 
emblements.     But  in  an  estate  to  A  to  hold  so  long 
as  she  remains  unmarried,  the  marriage  of  A  would  de- 
stroy her  right  to  emblements. 

3.  The  right  of  subletting,  unless  there  is  a  provision 
in  the  lease  to  the  contrary.8 

Legal  estates  of  freehold  are  divided  into  three 
classes,  tenancy  in  tail  after  possibility  of  issue  extinct, 
curtesy,  and  dower. 

1.  Tenancy  in  tail  after  possibility  of  issue  extinct 
arose  from  an  estate  tail  special,  where  the  person  from 
whose  body  the  issue  was  to  come  had  died,  leaving 
no  issue ;  or  having  left  issue,  the  issue  had  become  ex. 
tinct.      The   surviving    tenant,  under    these    circum- 
stances, had  a  life  estate,  with  the  right  of  committing 
waste,  a  right  not  enjoyed   by  the  ordinary  tenant  for 
life.3 

2.  Curtesy  arises  when    a    man  marries  a  woman 
seized  of  an  estate  of  inheritance,  and  she  dies,  having 
had  issue  capable  of  inheriting  the  estate.     The  hus- 

1  Estovers,  as  used  in  this  connection,  should  not  be  confounded 
with  the  common  of  Estovers,  which,  strictly,  is  a  right  exercised  in 
lands  other  than  those  occupied  by  the  tenant. 

2  2  Bl.  Comm.  122  et  sey.;  4  Kent  Comm.  73, 

3  2  Bl.  Comm.  124. 


FREEHOLDS   NOT  OF   INHERITANCE.  33 

band  then  has  an  estate  for  life  in  these  estates  of  the 
wife. 

There  are  four  requisites  essential  to  curtesy.  (i). 
Legal  marriage.  (2).  Actual  seisin  of  the  wife.  (3). 
Birth  of  issue  capable  of  inJieriting.  (4).  Death  of  the 
wife.1 

Seisin  is  of  two  kinds — actual,  or  seisin  in  fact,  and 
constructive,  or  seisin  in  law?  In  connection  with  cur- 
tesy, seisin  means  the  actual  possession  or  enjoyment 
of  the  estate  of  inheritance  by  the  wife.  There  was 
no  curtesy  in  a  remainder  or  reversion.  As  the  hus- 
band had  it  in  his  power  to  reduce  his  wife's  construc- 
tive seisin  to  actual  seisin,  he  had  no  curtesy  in  her 
estates  if  he  failed  to  do  so.3 

Upon  marriage  and  the  birth  of  issue  capable  01 
inheriting,  the  husband  became  tenant  by  the  curtesy 
initiate,  and  this  interest  at  common  law  could  be  sold 
under  execution.4 

The  husband  had  curtesy  in  the  equitable  estates  of 
the  wife,  to  whose  rents  and  profits  she  was  entitled,5 
though  there  was  no  curtesy  in  equitable  estates  in 
which  the  wife  was  the  trustee.  Curtesy  is  regulated 
by  the  statutes  of  the  different  States,  the  common 
law  having  been  largely  modified  in  most  instances. 

3.  Dower  arises  when  a  husband  is  seised,  dur- 
ing marriage,  of  an  estate  of  inheritance  and  dies. 
Here  the  wife  has  a  life  estate  in  one-third  of  such 
lands  and  tenements. 

There  are  three  requisites  of  dower,    (i).  Legal  mar- 

1  2  Bl.  Comm.  126  et  sef.;  4  Kent  Comm.  27  et  seq.\  i  Wash.  R.  P. 
*I28  et  setf. 

5  Constructive  seisin  is  substantially  merely  a  right  to  gain  actual 
seisin. 

3  2  Bl.  Comm.  127-130. 

4  Wickes   v.   Clarke,   8  Paige   172;   Canby's  Lessee  v.   Porter,   12 
Ohio  80.     This  principle  is  changed  by  statute  in  some  States. 

1     6  i  Wash.  R.  P.  *I30. 


34  A   REVIEW   IN   LAW   AND   EQUITY. 

riage.  (2).  Seisin,  either  actual  or  constructive,  of  the 
husband.  (3).  Death  of  the  husband. 

Actual  seisin  is  not  essential,  since  the  wife  has  no 
power  to  convert  the  husband's  constructive  seisin  into 
actual  seisin.1 

At  common  law  dower  could  be  barred  in  three 
ways: 

(i).  By  elopement  and  adultery.  (2).  Divorce  a  vin- 
culo.  (3).  Jointure,  which  was  an  estate  settled  upon 
a  woman  in  lieu  of  dower.  There  were  four  essentials 
to  a  good  jointure  : 

(i).  It  must  take  effect  immediately  on  the  death  of  the 
husband.  (2).  It  must  be  for  the  wife's  own  life,  not 
for  the  life  of  another,  nor  for  a  term  of  years.  (3). 
It  must  be  held  by  her  in  her  own  right,  and  not  in  trust 
for  her.  (4).  It  must  be  in  lieu  of  her  whole  dower? 

A  jointure  made  before  marriage  was  binding  on  the 
wife ;  if  made  after  marriage,  she  had  her  election  be- 
tween the  jointure  and  her  common-law  dower.3 

By  the  widow's  quarantine  was  meant  the  right  of 
the  widow  to  remain  in  and  occupy  the  house  of  her 
deceased  husband  for  the  period  of  forty  days. 

In  case  an  insufficient  dower  was  assigned  to  the 
widow,  she  could  enforce  her  claim  to  the  rest  by  the 
writ  of  rig/it  of  dower. 

If  no  dower  were  assigned,  she  could  enforce  her 
claim  by  a  writ  of  dower* 

The  subject  of  dower  is  regulated  by  statute  in  the 
various  States,  and  these  statutes,  as  well  as  those  re- 
lating to  curtesy,  should  be  carefully  studied  by  the 
student,  in  preparation  for  his  examination. 

1  2  Bl.  Comtn.  129  et  seq.;  4  Kent  Comm.  35  et  seq.\  i  Wash.  R.  P. 
*i6g,  par.  1-5. 

•  2  Bl.  Comm.  136.  3  i  Wash  R.  P.  *266. 

4  3  Bl.  Comm.  182,  183. 


CHAPTER   VII. 

ESTATES  LESS  THAN  FREEHOLD. 

Estates  less  than  freehold  are  of  three  kinds — es- 
tates for  years,  estates  at  -will,  and  estates  at  suffer- 
ance. 

I.  An  estate  for  years  is  an  estate  created  by  a  con- 
tract for  the  possession  of  lands  or  tenements  for  some 
determinate  period.1 

It  is  created  by  a  lease.  The  lease  itself  creates  no 
estate,  but  gives  the  lessee  a  bare  right  of  entry,  which 
is  called  the  interesse  termini? 

The  word  term  indicates  the  interest,  or  the  amount 
of  estate  which  the  lessee  has  in  the  property.  The 
word  time  indicates  how  long  the  term  may  continue. 
Thus,  if  an  estate  is  granted  to  A  for  six  years,  and,  at 
the  end  of  the  term,  to  B  for  ten  years,  in  case  A  sur- 
renders or  forfeits  his  interest  B's  estate  vests  immedi- 
ately, as  the  term  has  expired  ;  while  if  the  same  grant 
had  been  made  with  remainder  to  B  at  the  expiration 
of  the  time,  B's  estate  would  not  vest  till  the  end  of 
six  years,  whatever  might  have  become  of  the  estate 
of  A  in  the  meantime.3 

The  incidents  of  an  estate  for  years  are : 

1.  Estovers. 

2.  The  right  of  subletting,  unless  there  is  a  covenant 
to  the  contrary  in  the  lease. 

3.  Emblcments,  under  certain  circumstances,  as  when 
the  estate  for  years  is  brought  unexpectedly  to  an  end 

1  2  Bl.  Comm.  139.     See  Tied.  R.  P.  §  172. 

2  Tied.  R.  P.  §  174. 

3  2  Bl.  Comm.  144.     See  i  Wash.  R.  P.  *2Q2,  par.  4. 

(35) 


36  A   REVIEW  IN   LAW  AND  EQUITY. 

by  no  fault  of  the  tenant's.  Thus  if  A  leases  for  a 
term  of  years  from  B,  a  tenant  for  life,  and  the  latter 
dies  before  the  lease  for  years  expires,  A  is  entitled  to 
emblements.1 

In  case  the  property  leased  consists  of  buildings,  un- 
less there  are  covenants  to  that  effect,  the  tenant  cannot 
compel  the  landlord  to  keep  them  in  repair.  Though 
they  should  be  destroyed  by  fire  immediately  after  the 
making  of  the  lease,  the  landlord  is  not  obliged  to  re- 
store them,  nor  is  the  tenant  relieved  from  paying  rent. 
Even  equity  gives  no  relief  in  this  case.3 

So  long  as  the  tenant  remains  in  possession,  he  can 
under  no  circumstances  dispute  his  landlord's  title.3 

II.  Estates  at  will  are  such  as  are  held  at  the  will 
of  landlord  and  tenant,  and  may  be  determined  at  the 
will  of  either  party.4     No  arbitrary  termination  of  the 
estate  was  allowed  to  operate  to  the  injury  of  either 
party.     The  tenant  was  entitled  to  emblements  if  the 
estate  was  determined  by  the  landlord.5     The  law  does 
not  favor  estates  at  will,  and  at  common  law  they  were 
generally  construed  as  estates  from  year  to  year,  as 
the  rent  was  usually  paid  annually.6     The  general  rule 
now  is  that  either  party  must  give  the  other  a  notice 
equal  in  length  to  the  rent  period,  before  he  can  ter- 
minate the  estate,  and  that  this  notice  shall  take  effect 
at  the  beginning  of  a  rent  period?     If  A  is  tenant  of 
B  and  pays  his  rent  quarterly,  and  the  rent  is  due  the 
first  of  October,  a  notice  to  quit  from  B  given  on  the 
first  of  August  would  operate  from  the  first  of  the  fol- 
lowing October. 

III.  An  estate  at  sufferance  occurs  when  a  tenant 

1  2  Bl.  Comm.  144;  Tied.  R.  P.  g  182. 

J  2  Bl.  Comm.  Id.  (Cooley's  ed.  note  9);  Tied.  R.  P.  §  189. 

3  Tied.  R.  P.  §  198,  and  cases  cited. 

4  Tied.  R.  P.  §  212;  i  Wash.  R.  P.  *37o.     See  2  Bl.  Comm.  145. 

5  4  Kent  Comm.  in;  2  Bl.  Comm.  146. 

6  Id.  112;  Id.  147,  and  note.  7  Tied.  R.  P.  §  218. 


ESTATES   LESS   THAN   FREEHOLD.  37 

comes  into  possession  of  land  by  a  lawful  title,  and 
remains  in  possession  when  the  title  has  expired,  and 
without  any  lawful  title.1  Such  a  tenant  differs  from  a 
trespasser  only  in  that  the  landlord  must  make  entry 
and  proceed  against  him  by  the  action  of  ejectment." 

1  4  Kent  Comm.  116. 

*  2  Bl.  Comm.  150.     See  Darrell  v.  Johnson,  17  Pick.  266. 


CHAPTER   VIII. 

ESTATES   UPON  CONDITION. 

An  estate  upon  condition  is  one  which  may  be  cre- 
ated, enlarged,  or  defeated  by  the  happening  or  not 
happening  of-  some  event.1 

Conditions  are  divided  into 

1.  Conditions  in  fact,  or  express  conditions,  being 
such  as  are  contained  in  the  instrument  creating  the 
estate,  as  in  the  case  of  a  mortgage. 

2.  Conditions  in  law,  or  implied  conditions,  which 
need  not  be  expressed  in  the  deed,  but  which  exist  by 
the  presumption  of  law,  as  that  a  tenant  for  life  shall 
not  commit  waste ;  as,  in  a  grant  to  a  corporation,  that 
the  corporation  shall  live  up  to  its  object  and  design.* 

Conditions  are  also  divided  into 

1.  Conditions  precedent,  or  those  which  must  be  ful- 
filled before  the  estate  can  vest  or  be  enlarged ;  as,  an 
estate  to  A  for  life  on  his  marriage  with  B :  an  estate 
to  A  for  ten  years ;  if  he  marries  B,  then  for  life. 

2.  Conditions  subsequent,  or  those  which  cause  the 
defeating  of  the  estate ;  as  an  estate  to  A  to  hold  so 
long  as  he  remains  unmarried.3 

Express  conditions  are  void 

A.  If  they  are  impossible,  or  become  so  by  the  act  of 
God ;  as  an  estate  to  A  for  life  if  he  shall  go  a  tho»- 
sand  miles  in  an  hour. 

B.  If  they  are  repugnant  to  the  law ;  as  an  estate  to 
A  for  life  if  he  kills  a  certain  person. 

1  4  Kent  Comm.  121;  2  Bl.  Comm.  151. 

2  2  Id.  et  seq. 

3  4  Kent  Comm.  124;  Tied.  R.  P.  §  271. 

(38) 


ESTATES   UPON  CONDITION.  39 

C.  If  they  are  repugnant  to  the  nature  of  the  estate ; 
as  an  estate  to  A  for  life,  provided  he  alienates  a  por- 
tion of  it  in  fee.1 

If  the  void  condition  is  a  condition  precedent,  the 
estate  never  vests ;  if  a  condition  subsequent,  it  is  in- 
operative and  cannot  defeat  the  estate. 

The  distinctions  between  an  estate  upon  condition,  an 
estate  with  limitation,  and  a  conditional  limitation  are 
these : 

An  estate  upon  condition  is  one  which  is  not  abso- 
lutely defeated  by  the  happening  of  the  condition,  but 
which  requires  entry  on  the  part  of  the  grantor  or  his 
heirs  in  order  to  completely  divest  the  grantee  of  the 
estate  ;  as,  an  estate  to  A  for  life,  upon  condition  that 
he  remain  unmarried.  Here,  upon  the  marriage  of  A, 
entry  on  the  part  of  the  grantor  or  his  heirs  would  be 
necessary  to  defeat  A's  life  estate. 

An  estate  with  limitation  is  one  which  is  absolutely 
defeated  by  the  happening  of  the  condition  ;  as,  an 
estate  to  A  to  be  held  only  as  long  as  he  remains  un- 
married. Here  the  marriage  of  A  entirely  divests  him 
of  the  estate,  no  entry  on  the  part  of  the  grantor  or 
his  heirs  being  needed. 

A  conditional  limitation  is  an  estate  upon  condition 
with  a  limitation  over  to  some  other  party  upon  the 
happening  of  the  condition  ;  as,  an  estate  to  A  for  life 
upon  condition  that  he  remain  unmarried,  but  if  he 
marry,  then  to  B  and  his  heirs.  Here,  upon  A's  mar- 
riage, his  estate  would  be  defeated  and  the  title  would 
immediately  vest  in  B  and  his  heirs.  The  condition  is 
construed  as  a  limitation,  out  of  regard  for  B,  whose 
estate  might  otherwise  be  defeated  through  the  failure 
of  the  grantor  or  his  heirs  to  enter  upon  A's  mar- 
riage.2 

1  2  Bl.  Comm.  156,  157;  Tied.  R.  P.  §§  274,  275. 

8  Tied.  R.  P.  §  281;  4  Kent  Comm.  126.    See  also  2  Bl.  Comm.  155. 


4O  A  REVIEW  IN   LAW  AND   EQUITY. 

Among  the  most  important  estates  upon  condition 
are  those  created  by  mortgage.  In  this  connection 
may  be  mentioned  the  vivum  vadium,  which  was  the 
grant  of  an  estate  from  A  to  B,  to  be  held  by  the 
latter  until  the  rents  and  profits  should  pay  to  B  a  loan 
from  the  latter  to  the  former.  In  this  case  the  pledge 
was  a  living  one ;  that  is,  the  title  to  the  land  could 
not  be  completely  lost  by  A. 

A  Welsh  mortgage  differed  from  a  vivum  vadium 
only  that  in  the  case  of  the  former  the  rents  and  profits 
were  applied  solely  to  the  payment  of  the  interest, 
while  in  the  latter  they  were  applied  both  to  principal 
and  interest.1  Both  the  vivum  vadium  and  the  Welsh 
mortgage  are  obsolete. 

A  mortgage  proper  (vadium  mortuunt)  is  a  convey- 
ance absolute  in  form,  from  A  to  B,  upon  condition 
that  if  A  shall  at  a  time  certain  or  upon  demand  repay 
to  B  a  sum  of  money,  the  conveyance  shall  be  void.3 
At  common  law,  if  the  mortgagor  failed  to  make  the 
payment  precisely  at  the  appointed  time,  the  estate 
conveyed  in  mortgage  became  absolute  in  the  mort- 
gagee. Afterwards  equity  interfered  and  gave  to  the 
mortgagor  a  reasonable  time  in  which  to  redeem  the 
estate,  upon  condition  broken,  this  right  being  called 
the  mortgagor's  equity  of  redemption? 

There  are  two  parts  to  a  mortgage,  the  conveyance, 
and  the  defeasance,  which  contains  the  conditions,  upon 
the  fulfillment  of  which  the  conveyance  becomes  void. 
They  are  commonly  contained  in  the  same  instrument, 
though  they  may  be  made  separately.4  A  deed  abso- 
lute in  form  may  be  shown  to  be  a  mortgage,  if  that 
was  the  real  intention  of  the  parties.6 

1  2    Bl.    Comm.    157 ;    4    Kent  Comm.    137 ;     2    Wash.    R.    P. 
*476 

2  2  Wash.  R.  P.  *475  ;  R.  and  L.  Law  Diet.,  sub.  Mortgage. 

3  2  Bl.  Comm.  158;  Tied.  R.  P.  §  299.  4  4  Kent  Comm.  141. 
5  See  Emerson  v.  Atwater,  7  Mich.  12;  Tied.  R.  P.  §  307. 


FORECLOSURE.  41 

At  common  law  it  was  held  that  the  fee,  together 
with  the  general  property,  was  in  the  mortgagee,  there 
being  merely  a  right  of  redemption  in  the  mortgagor, 
and  this  is  the  doctrine  in  some  States,  while  in  others 
it  is  held  that  the  fee  is  still  in  the  mortgagor,  the 

O       O  ' 

mortgagee  having  only  a  lien  on  the  mortgaged  prop- 
erty.1 

The  mortgagee's  interest  is  regarded  as  a  chattel  in- 
terest, and  goes  to  his  personal  representatives,  instead 
of  to  his  heirs-at-law.s 

At  common  law  the  mortgagee  could  take  posses- 
sion of  the  mortagaged  premises  at  any  time,  and 
apply  the  rents  and  profits  to  the  liquidation  of  his 
claim,  unless  there  was  a  stipulation  that  the  mort- 
gagor should  remain  in  possession  until  condition 
broken.  Mortgages  generally  contain  this  provision, 
and  if  they  do  not  it  is  the  universal  practice  for  the 
mortgagor  to  retain  possession,  founded  upon  the  pre- 
sumed or  tacit  consent  of  the  mortgagee.3 

Upon  default  in  payment,  the  mortgagee  has  the 
right  to  foreclose — that  is,  to  cut  off  the  mortgagor's 
interest  in  the  mortgaged  premises.  The  methods  of 
doing  this  are  regulated  by  statutes,  varying  in  the 
different  States.  These  statutes  should  be  consulted 
by  students.  In  general,  they  may  be  grouped  under 
the  following  heads : 

a.  By  peaceably  entering  on  the  premises  and  remain- 
ing  in   possession    a   certain    time."     The   mortgagor, 
during  this  time,  can   redeem  by  paying  the  amount 
due,  and  the  mortgagee  must  account   for  the  rents 
and  profits. 

b.  By  bringing  a  bill  in  equity,  asking  for  a  foreclos- 
ure   by  decree    of   court.      Sometimes  the  court  de- 

1  2  Bl.  Comm.  158;  4  Kent  Comtn.  154.     See  Tied.  R.  P.  §  301. 
8  Tied.  R.  P.  §  319.  3  4  Kent  Comm.  155,  165. 

4  2  Pingree  on  Mortgages,  §  1576  et  seq. 


42  A   REVIEW   IN   LAW  AND   EQUITY. 

crees  that  unless  the  mortgagor  shall  pay  the  amount 
due  before  a  certain  time,  his  interest  shall  be  forever 
foreclosed,  and  that  the  estate  shall  become  absolute  in 
the  mortgagee.  This  is  called  strict  foreclosure.  The 
more  common  decree  is  for  a  sale  of  the  premises,  any 
balance  left  after  payment  of  the  amount  due  on  the 
mortgage  and  the  costs  to  be  paid  to  the  mortgagor.1 

c.  Many  mortgages  contain  a  power  of  sale,  author- , 
izing  the  mortgagee,  in  default  of  payment,  to  sell  the 
mortgaged  premises.     This  proceeding  is  regulated  by 
statute.' 

The  mortgagor  is  not  obliged  to  foreclose  if  he  has 
any  personal  remedy  against  the  mortgagee,  as  a  note 
or  a  bond ;  and  if  foreclosure  proceedings  fail  to  sat- 
isfy his  claim,  he  can  follow  any  personal  remedy  he 
may  have. 

Tacking  was  an  English  doctrine  by  which,  if  there 
were  three  mortgages  on  the  same  property,  the  third 
mortgagee  could  buy  the  first  mortgage  and  could 
"  tack  "  his  third  mortgage  to  it,  compelling  the  pay- 
ment of  the  first  and  third  before  the  second  could  be 
satisfied.  It  depended  on  the  equitable  maxim  that 
when  the  equities  are  equal  the  law  will  prevail.  The 
doctrine  does  not  hold  in  the  United  States.3 

1  Tied.  R.  P.  §  358.  *  Tied.  R.  P.  §  363. 

*  4  Kent  Comm.  176  et  sty. 


CHAPTER   IX. 

REMAINDERS— EXECUTORY  DEVISES — REVERSIONS. 

I.  A  remainder  is  an  estate  limited  to  take  effect  on 
the  termination  of  some  preceding  estate.  There  are 
three  essentials  to  every  good  remainder. 

1 .  //  must  have  a  particular  estate  to  support  it.     An 
estate  at  will  is  not  sufficient  for  this  purpose. 

2.  The  remainder  must  pass  from  the  grantor  at  the 
time  of  the  creation  of  the  particular  estate.     If  an  es- 
tate for  life  were  conveyed  to  A  to-day,  and  to-morrow 
a  conveyance  were  made  creating  a  remainder  in  B,  the 
latter  would  be  void. 

3.  The  remainder  must  vest  during  the  existence  of 
the   particular   estate,    or    immediately   on    its    termi- 
nation.    If    an    estate    be    given    to   A   for    life,   re- 
mainder  to    B's   oldest    son,   and    B   dies  before   A, 
leaving  no  son,    the   remainder   is   void ;    while   if  B 
has  a  son  during  the  life  of  A,  the  remainder  vests  in 
him  and  is  good.' 

Remainders  are  of  two  kinds — vested  or  executed, 
and  contingent  or  executory. 

A.  A  vested  remainder  is  one  in  which  the  estate  is 
invariably  fixed  in  a  determinate  person  on  the  termi- 
nation of  the  particular  estate.  It  is  one  in  which  the 
remainder-man  is  certain  to  enjoy  the  estate,  provided 
he  survives  the  owner  of  the  particular  estate.  The 
test  to  distinguish  between  a  vested  and  a  contingent 
remainder  is  the  certainty  of  the  right  to  enjoy  which 
the  remainder-man  in  the  first  case  has,  not  the  cer- 

1  2  Bl.  Comm.  164  et  seq. 

(43) 


44  A  REVIEW  IN   LAW  AND   EQUITY. 

tainty  of  the  enjoyment?  An  estate  to  A  for  life,  re- 
mainder to  B  and  his  heirs,  is  a  vested  remainder. 

B.  A  contingent  remainder  is  one  which  is  directed 
to  take  effect  in  a  dubious  or  uncertain  person,  or  upon 
a  dubious  or  uncertain  event,  as  an  estate  to  A  for  life, 
remainder  to  B's  unborn  son,  or  an  estate  to  A  for  life, 
remainder  to  B  upon  his  return  from  Rome. 

Every  contingent  remainder  requires  an  estate  of  free- 
hold to  support  it,  in  order  that  the  seisin  may  vest." 

In  an  estate  to  A  for  twenty  years,  remainder  to  B 
and  his  heirs,  upon  A's  taking  possession  the  seisin  is 
in  B ;  but  in  an  estate  to  A  for  twenty  years,  remain- 
der to  B's  unborn  son,  there  is  no  one  in  whom  the 
seisin  can  vest,  and  consequently  the  remainder  would 
be  void,  and  only  the  estate  to  A  would  pass  by  the 
conveyance. 

As  a  general  rule,  a  contingent  remainder  cannot  be 
limited  on  a  double  possibility  or  contingency  where 
there  is  some  legal  improbability  in  the  contingencies ; 
as,  in  an  estate  to  A  for  life,  remainder  to  B's  heirs,  no 
such  person  as  B  being  in  existence.*  &HVM**x 


ILLUSTRATIONS. 

An  estate  to  A  for  life,  remainder  to  such  uses  as  A 
shall  appoint,  and  in  default  of  appointment,  remain- 
der to  B,  is  a  vested  remainder  in  B.4 

An  estate  to  A  for  one  hundred  years,  if  B  shall  live 
so  long,  and  after  B's  death  to  C  in  fee,  is  a  vested  re- 
mainder. The  possibility  that  B  will  live  one  hundred 
years  is  so  small  as  not  to  give  a  contingent  character 
to  the  remainder.5 

1  2  Bl.  Comm.  168;  4  Kent  Comm.  202,  203,  206;   Fearne  Cont. 
Rem.  216. 
a  2  Bl.  Comm.  171. 

3  Id.  170.     This  rule  is  obsolete.     Tied.  R.  P.  §  417. 

4  Cunningham  v.  Moody,  i  Ves.  174.  6  4  Kent  Comm.  209. 


REMAINDERS.  45 

An  estate  to  A,  B,  and  C  for  life,  remainder  in  fee  to 
the  survivor  of  them,  is  a  contingent  remainder.1 

A  devise  of  one  lot  to  A  in  fee  and  of  another  to  B 
in  fee,  and  if  either  dies  without  issue  the  survivor  to 
take  both,  is  a  cross  contingent  remainder.* 

The  courts  favor  vested  remainders,  and  where  there 
is  doubt  will  construe  remainders  as  vested.3 

Rule  in  Shelly's  case.4 — When  by  any  gift  or  con- 
veyance an  ancestor  takes  an  estate  for  life,  and  by  the 
same  gift  or  conveyance  an  estate  is  limited,  either  me- 
diately or  immediately,  to  his  heirs  in  fee  or  in  tail,  the 
word  heirs  shall  be  construed  as  a  word  of  limitation, 
and  not  of  purchase. 

Under  this  rule,  if  an  estate  were  given  to  A  for  life, 
remainder  to  his  heirs,  the  whole  estate  would  vest  in 
A  and  he  would  take  an  estate  in  fee  simple.  In  other 
words,  the  word  heirs  has  no  reference  to  the  heirs  as 
such,  but  it  is  regarded  as  simply  defining  or  limiting 
the  estate  which  the  ancestor  is  to  take.  If  the  ances- 
tor dies  intestate  and  not  having  alienated  the  estate, 
the  heirs  take  by  descent,  and  not  by  purchase  under 
the  grant  to  the  ancestor.  So,  if  an  estate  were  given 
to  A  for  life,  remainder  to  B  for  life,  remainder  to  A's 
heirs,  A  would  have  a  life  estate  with  remainder  to 
himself  in  fee,  and  he  could  convey  his  life  estate,  sub- 
ject to  B's  life  estate,  together  with  the  remainder  in 
fee  simple,  so  as  to  bar  his  heirs.5  The  rule  in  Shelly's 
case  has  been  abolished  in  some  States,  in  others  it  has 
partial  operation,  and  in  others  it  retains  its  full  effect. 

A  perpetuity  is  an  attempt  to  control  the  disposition 
and  direction  of  property  for  a  longer  time  than  is  al- 
lowed by  law  •  as,  if  an  estate  were  given  to  A  for  life, 

1  Id.  207.  5  Id.  201. 

3  Id.  203.  4  i  Co.  104. 

5  See  4  Kent  Comm.  214;  Tied.  R.  P.  §  433  et  seq.\  2  Wash.  R.  P. 
*268  et  seq. 


46  A   REVIEW   IN   LAW   AND   EQUITY. 

remainder  to  B's  eldest  son  C,  remainder  to  C's  eldest  son, 
etc.  The  law  permits  the  owner  of  property  to  control 
its  disposition  among  persons  who  are  in  existence  during 
the  life  of  the  first  taker,  and  for  twenty-one  years  after 
their  decease.  That  is,  the  absolute  and  uncontrolled  inter- 
est must  vest  in  some  person  during  that  time,  any  limita- 
tion beyond  being  void.1  A  grant  of  property  to  trus- 
tees to  hold  in  trust  during  the  lives  of  the  testator's 
sons  and  during  the  lives  of  all  their  sons  who  should 
be  living  at  the  time  of  the  testator's  death,  and  upon 
the  death  of  the  last  to  be  given  to  certain  persons 
absolutely,  would  be  good,  as  not  coming  within  the 
rule  against  perpetuities.  This  subject  is  regulated  by 
statute  in  the  different  States. 

There  is  one  exception  to  the  rule  against  perpetuities, 
namely,  in  grants  of  property  to  trustees  to  be  held  for 
eleemosynary  purposes  * — i.  e.,  for  purposes  of  religion, 
education,  charity,  and  of  relieving  the  people  of  bur- 
dens which  might  be  imposed  by  the  government  by 
way  of  taxation.  Here  the  grantor  can  determine  the 
perpetual  disposition  of  the  property. 

Merger  is  the  doctrine  by  which,  when  a  lesser  and  a 
greater  estate  come  together  in  the  same  person,  the 
lesser  is  merged  or  swallowed  up  in  the  greater. 
Thus,  in  a  grant  of  an  estate  to  A  for  life,  remainder 
to  B  and  his  heirs,  if  A  should  purchase  the  remainder 
of  B,  his  estate  for  life  would  be  merged  in  the  fee 
thus  acquired. 

The  estates  must  vest  in  one  and  the  same  person  by 
one  and  the  same  right,  in  order  to  allow  of  merger. 
Thus,  if  a  tenant  for  years  should  make  the  remain- 
der-man or  reversioner  his  executor,  merger  would  not 
take  place.  Merger  did  not  apply  in  the  case  of  an 
estate  tail,  if  the  tenant  in  tail  purchased  the  reversion.1 

1  4  Kent  Comm.  267;  Tied.  R.  P.  §  544. 

•  Bish.  Eq.  §  133.  »  2  Bl.  Comm.  177. 


EXECUTORY  DEVISES— REVERSIONS.  47 

^\ 

II.  An  executory  devise  is  such  a  disposition  of  lands 
by  will  that  thereby  no  estate  vests  in  them  on  the 
death  of  the  devisor,  but  only  on  some  future  contin- 
gency. 

An  executory  devise  differs  from  a  remainder  in  three 
particulars : 

1.  It  does  not  require  a  particular  estate  to  support  it. 
A  conveyance  by  deed  to  A,  to  take  effect  in  one  year 
from  its  date,  would  be  void.     A  devise  to  A,  to  take 
effect  one  year  from  the  testator's  death,  would  be 
good. 

2.  A  fee  can  be  limited  over  a  fee  by  an  executory  de- 
vise ;  by  a  remainder  it  could  not.     In  estate  to  A  in 
fee,  and  if  he  dies  before  reaching  the  age  of  twenty- 
one,  then  to  B  and  his  heirs,  the  limitation  over  to  B 
would  be  void  by  deed ;  it  would  be  good  in  a  devise. 

3.  By  an  executory  devise  a  remainder  can  be  limited 
in  a  cliattel  interest  after  a  life  estate  in  the  same.     A 
grant  of  an  estate  of  a  thousand  years  to  A,  to  be  held 
by  him  for  life,  remainder  to    B,  would    be  void  by 
deed,  but  good  as  an  executory  devise.     At  common 
law  a   life    estate   was    regarded    as    greater   than    an 
estate  for  years,  however  long,  and  when  the  two  came 
together    in    one    person    the    estate    for    years    was 
merged   in  the  life  estate,  and  there  was  nothing  on 
which  a  remainder  could   operate.      But    in  wills  the 
strictness  of  the  common  law  was  mitigated  in  order 
to  carry  out  the  obvious  intention  of  the  testator.1 

III.  A  reversion  is  the  residue  of  an  estate  left  in 
the  grantor  to  commence  upon  possession  after  the  de- 
termination of  a  particular  estate  granted  by  him.     It 
is  -never  created  by  deed,  but   arises  by  construction 
of  law. 

The  usual  incidents  of  a  reversion  are  fealty  and  rent. 

1  2  Bl.  Comm.  172  et  seq.     For  discussion  of  2,  see  Van  Home  v. 
Campbell,  100  N.  Y.  287. 


48  A  REVIEW   IN  LAW  AND   EQUITY. 

The  rent  may  be  granted  away,  reserving  the  rever- 
sion, and  the  reversion  may  be  granted  away,  reserving 
the  rent,  by  special  words ;  but  by  a  general  grant  of 
the  reversion  the  rent  passes  as  an  incident  thereto.1 

1  2  Bl.  Comm.  175. 


CHAPTER   X. 

SEVERALTY,   JOINT   TENANCY,   ETC. 

With  regard  to  the  number  and  connection  of  their 
owners,  estates  may  be  held  in  four  different  ways — 
sever  alty,  joint  tenancy,  coparcenary,  and  tenancy  in  com- 
mon. 

I.  An  estate  is  held  in  severalty  when  one  person  is 
the  sole  owner  thereof. 

II.  An  estate  in  joint  tenancy  is  where  lands  or  tene- 
ments are  granted  to  two  or  more  persons  to  hold  in 
fee  simple,  fee  tail,  for  life,  for  years,  or  at  will.1 

This  estate  is  always  created  by  act  of  the  parties, 
never  by  laiv. 

Estates  in  joint  tenancy  always  possess  four  unities, 
namely,  title,  time,  interest,  and  possession, — i.  e.,  the 
estate  must  be  created  by  the  same  title,  and  at  the 
same  time,  and  each  tenant  must  have  an  equal  inter- 
est and  a  common  possession.  Joint  tenants  are  seised 
per  my  et  per  tout, — i.  e.,  each  one  is  seised  of  the  whole 
and  of  each  part.  They  are  seised  of  the  whole  of  an 
undivided  part,  not  of  apart  of  an  undivided  whole,  as 
is  the  case  with  tenants  in  common.  Therefore  when 
one  joint  tenant  conveys  to  another,  a  release  would 
be  used,  and  not  a  feoffment,  since  no  livery  of  seisin 
is  needful,  each  tenant  being  already  seised." 

In  the  case  of  a  grant  to  a  man  and  his  wife,  they 
were  neither  tenants  in  common  nor  joint  tenants,  as 
they  were  regarded  as  one  person.  They  were  seised 

1  2  Bl.  Comm.  180. 

9  2  Bl.  Comm.  180  et  seq.  ;  Tied.  R.  P.  §238. 

(49) 


50  A   REVIEW   IN   LAW   AND   EQUITY. 

per  tout  and  were  called  tenants  by  the  entirety.  In 
a  grant  to  a  man  and  his  wife  and  a  third  person, 
the  man  and  wife  took  a  half,  and  the  third  person  the 
other  half.1 

The  chief  incident  of  joint  tenancy  was  the  right  of 
survivorship  (Jus  accrescendi),  by  which  the  whole  es- 
tate given  to  the  joint  tenants  finally  vested  in  the  last 
survivor.  Thus  in  a  grant  to  A,  B,  and'  C  to  hold  as 
joint  tenants  in  fee,  the  whole  estate  in  fee  would  vest 
in  A  if  he  survived  B  and  C.2 

An  estate  in  joint  tenancy  may  be  destroyed  by  de- 
stroying any  of  the  four  unities.  At  common  law  there 
was  no  right  of  partition,  but  this  right  was  given  by 
statute  31  and  32  Henry  VIII.  (1540-41)." 

Suppose  an  estate  were  given  to  A,  B,  C,  and  D  to 
hold  as  joint  tenants  for  life,  with  remainder  in  fee  to 
the  survivor,  and  that  D  alienates  his  interest  to  E. 
Then  A,  B,  and  C  are  joint  tenants  with  regard  to  each 
other,  and  tenants  in  common  with  regard  to  E.  C 
dies,  then  A  and  B  hold  three-fourths  of  the  estate  as 
joint  tenants,  and  E  one-fourth  as  a  tenant  in  common 
with  A  and  B.  B  dies,  then  A  holds  the  three-fourths 
and  E  the  one-fourth  as  tenants  in  common.  On  the 
death  of  D  the  whole  estate  in  fee  would  vest  in  A. 

III.  Coparcenary  is  where  lands  of  inheritance  de- 
scend from  an  ancestor  to  two  or  more  persons.  By 
common  law,  when  an  ancestor  died  leaving  as  his  heirs 
females,  they  all  inherited,  taking  as  coparceners.  By  spe- 
cial custom,  males  took  as  coparceners,  as  in  lands  held 
by  gavelkind. 

Coparcenary  differed  from  joint  tenancy  in  four  re- 
spects : 

i.  It  was  created  by  act  of  law,  while  joint  tenancy 
was  created  by  act  of  parties. 

1  2  Bl.  Comm.  182;  Tied.  R.  P.  §§  242,  243. 

*  Id.  183;  Id.  §238.  3  2  Bl.  Comm.  185. 


SEVERALTY,   JOINT   TENANCY,    ETC.  51 

2.  The  unity  of  time  was  not  necessary.     If  A,  B, 
and  C  were  coparceners,  and  A  died  leaving  a  daughter 
D  ;  B,  C,  and  D  were  still  coparceners,  though  unity  of 
time  was  absent. 

3.  There  was  no  right  of  survivorship,  since  coparcen- 
ers were  seised  per  my  and  not  per  tout. 

4.  Coparceners    could    compel  partition  at  common 
law.1 

Hotchpot  was  where  one  coparcener  had,  prior  to  the 
death  of  the  ancestor,  received  an  estate  in  frankmar- 
riage,  and  then  the  ancestor  had  died,  leaving  estates  in 
fee  simple.  The  donee  in  frankmarriage  was  obliged  to 
put  her  estate  in  with  the  estates  in  fee  simple,  in  order 
to  share  as  coparcener  in  such  estates.  The  rule  held 
only  where  lands  descended  in  fee  simple.  When  they 
descended  in  fee  tail,  the  donee  in  frankmarriage  was 
entitled  to  her  share  as  though  she  had  received  no 
advancement.2 

IV.  Tenancy  in  common  is  where  tenants  hold  by 
different  titles,  but  have  the  unity  of  possession. 
They  are  seised  per  my  and  not  per  tout,  consequently 
there  is  no  right  of  survivorship.  Partition  could  not 
be  compelled  at  common  law,  but  statutes  31  and  32 
Henry  VIII.,  enabled  this  to  be  done.1 

The  ancient  common  law  favored  joint  tenancy. 
When  the  influence  of  the  feudal  system  weakened, 
the  construction  favored  tenancy  in  common.  At  the 
present  time,  express  words  to  that  effect  are  needed  to 
create  an  estate  in  joint  tenancy,  such  as  "  to  hold  as 
joint  tenants  and  not  as  tenants  in  common."' 

1  2  Bl.  Comm.  187  et  seq.  s  Id.  190. 

3  2  Bl.  Comm.  191;  Tied.  R.  P.  §239. 

4  2  Bl.  Comm.  193  ;  Tied.  R.  P.  §  240  ;  I  Wash.  R.  P.  *4o8. 


CHAPTER   XL 

TITLE   BY   DESCENT. 

Title  is  the  legal  ground  upon  which  a  person's  es- 
tate rests.  A  perfect  title  comprises  actual  possession, 
right  of  possession,  right  of  property? 

The  right  of  property  is  now  obsolete.2 

At  common  law  these  three  elements  of  title  might 
exist  in  as  many  different  persons.  Suppose  that  A 
disseises  B.  A  hai  the  naked  possession,  but  both  the 
apparent  and  the  actual  right  of  possession  lie  in  B.  A 
dies,  still  in  possession,  and  C,  his  son,  remains  in  pos- 
session. This  is  called  a  descent  cast, — /.  e.,  when  a  dis- 
seisor  dies  and  his  heir  takes  possession  of  the  prop- 
erty. Now  C  has  the  actual  right  of  possession,  though 
the  apparent  right  of  possession  is  still  in  B.  He  can 
enforce  his  right  only  by  an  action  at  law,  but  not  by 
any  act  of  his  own.  Should  B  take  no  action  for  thirty 
years,  his  apparent  right  of  possession  would  be  gone, 
and  he  would  have  the  mere  right  of  property,  C  hav- 
ing the  possession  and  the  right  of  possession.  Now 
if  C  should  be  disseised  by  D  and  the  latter's  son  E 
should  receive  the  estate  by  a  descent  cast,  the  actual 
right  of  possession  would  be  in  E,  the  apparent  right  of 
possession  in  C,  and  the  right  of  property  in  B. 

In  case  the  disseisor  and  his  heirs  remained  in  pos- 
session under  a  claim  of  right  for  sixty  years,  they 
gained  a  perfect  title,  and  the  disseisee  lost  even  the 
right  of  property.3 

The  common  law  in  regard  to  the  time  required  to 

1  2  Bl.  Comm.  195,  196. 

s  Id.  198,  note  3  (Cooley) ;  see  Walker's  Am.  Law,  366. 
3  2  Bl.  Comm.  197  et  seq. 
(52) 


TITLE   BY   DESCENT.  53 

gain  a  complete  title  to  real  property  by  adverse  pos- 
session has  been  changed  by  statute  both  in  this  coun- 
try and  in  England,  and  now  by  open,  continued,  unin- 
temtpted,  and  adverse  possession  under  a  claim  of  right 
for  twenty  years,  an  owner's  title  may  be  completely 
barred.1  Generally,  by  statute,  the  twenty  years  do 
not  begin  to  run  in  the  case  of  infants,  married  women, 
insane  persons,  and  persons  beyond  seas,  until  the  disabil- 
ity has  been  removed.2  The  occupancy  by  adverse 
possession  need  not  be  by  one  person,  but  may  be  by 
any  number  of  persons  who  are  in  privity  with  each 
other,  as  ancestor -and  heir,  grantor  and  grantee.3 

Descent  is  the  title  by  which  a  person,  on  the  death 
of  his  ancestor,  acquires  his  estate  by  right  of  repre- 
sentation as  his  heir-at-law. 

Consanguinity  is  the  relationship  existing  between 
persons  who  are  descended  from  the  same  common 
ancestor.  Consanguinity  is  of  two  kinds: 

i.  Lineal,  or  the  relationship  existing  between  per- 
sons one  of  whom  is  descended  directly  from  the  other, 
as  between  father,  son,  grandson,  etc. 

2..  Collateral,  or  the  relationship  existing  between 
persons  descended,  not  the  one  from  the  other,  but 
from  the  same  ancestor,  as  between  brothers,  they  be- 
ing descended  from  the  same  parents. 

In  reckoning  lineal  relationship,  each  generation 
counts  a  degree,  so  that  the  father  is  related  to  the 
son  in  the  first  degree,  to  his  grandson  in  the  second,  etc.* 

In  computing  collatereral  relationship,  two  methods 
have  been  used  : 

a.  The  common- law  method,  in  which,  starting  with 
the  common  ancestor,  the  degrees  were  reckoned  down 

1  See  3  Wash.  R.  P.  *48g  et  seq.  ;  Tied.  R.  P.  §  697  et  seq.\  School 
District  v.  Lynch,  33  Comm.  333  ;  Gay  r.  Mitchell,  35  Ga-  X39  >  Mor* 
rison  v.  Kelley,  22  111.  610  ;  School  District  v.  Benson.  31  Me.  384. 

*  3  Wash.  R.  P.  *soi.  3  Id.  *493- 

4  2  Bl.  Comm.  201  et  seq. 


54  A   REVIEW   IN   LAW   AND   EQUITY. 

by  generations  to  the  persons  whose  relationship  was 
to  be  determined,  and  the  degree  of  the  more  remote  de- 
termined the  degree  of  relationship.  If  they  were  re- 
lated in  the  same  degree  to  the  common  ancestor,  that 
degree  determined  the  degree  of  relationship  between 
them.  Thus,  the  degree  of  relationship  of  an  uncle 
and  a  nephew  is  determined  by  starting  from  the  com- 
mon ancestor,  who  would  be  the  grandfather  of  the 
nephew  and  the  father  of  the  uncle,  and  reckoning 
down  to  the  nephew,  two  degrees,  and  to  the  uncle, 
one  degree ;  and  the  degree  of  the  nephew  being  the 
more  remote,  he  would  be  related  to  the  uncle  in  the 
second  degree.  First  cousins  would  be  related  in  the 
second  degree,  each  being  two  degrees  removed  from 
the  common  ancestor,  the  grandfather. 

b.  The  metJiod  of  reckoning  consanguinity  employed  in 
the  civil  law,  and  which  has  been  generally  adopted  in 
this  country,  is  to  count  from  one  person  up  to  the 
common  ancestor,  and  then  down  to  the  other,  the  sum 
of  the  degrees  determining  the  degrees  of  relationship. 
Uncle  and  nephew  would  be  related  in  the  third 
degree,  first  cousins  in  the  fourth,  etc.1 

An  heir  apparent  is  one  who  would  inherit,  pro- 
vided he  survives  the  ancestor,  as  an  eldest  son. 

An  heir  presumptive  is  one  who  would  inherit,  pro- 
vided the  ancestor  should  die  at  the  present  moment,  as 
a  daughter  who  was  an  only  child.* 

There  are  seven  canons  of  descent  at  common  law. 
All  are  now  obsolete,  with  the  exception  of  the  fourth, 
which  is  still  operative  with  considerable  modifications. 

I.  Inheritances  shall  lineally  descend  to  the  issue  of  the 
person  who  last  died  actually  seised,  but  shall  never  line- 
ally ascend.  Actual  seisin  is  necessary.  Thus,  if  A 

1  2  Bl.   Comm.   *2o6  and  note   (Cooley);    4  Kent   Comm.  412;  3 
Wash.  R.  P.  *4o6. 

2  2  Bl.  Comm.  208. 


TITLE   BY   DESCENT.  55 

should  die  leaving  two  sons,  B  the  elder,  C  the 
younger,  and  B  should  die,  never  having  been  act- 
ually seised,  C,  the  younger  son,  would  inherit  to  the 
exclusion  of  B's  heirs,  as  being  the  heir  of  A,  the  per- 
son last  actually  seised. 

2.  Male  issue  shall  be  preferred  to  female.     A  dies 
leaving  three  daughters  and  one  son.     The  son  inherits 
the  whole  estate  to  the  exclusion  of  the  daughters. 

3.  Where  there  are  two  or  more  males  in  equal  degree, 
tlie   eldest  only  shall  inherit;    -where  there  are  two  or 
more  female  heirs  in  the  same  degree,  they  take  as  co- 
parceners, share  and  share  alike. 

4.  The  lineal  descendants  of 'any  person  deceased  shall 
represent  their  ancestor, — i.  e.,  shall  stand  in  the  same 
place  that  the  person  himself  would  have  stood,  had 
he  been  living. 

Suppose  an  ancestor  has  three  daughters,  A,  B,  and 
C  ;  A  dies  leaving  three  daughters,  B  dies  leaving  a  son 
and  two  daughters,  and  C  dies  leaving  four  daughters. 
Last  of  all,  the  ancestor  dies.  Then  the  three  daughters 
of  A  will  each  take  one-third  of  one-third  of  the  estate, 
being  regarded  as  standing  in  the  place  of  their  mother. 
The  son  of  B  would  take  the  whole  of  one-third,  ac- 
cording to  canon  2,  the  four  daughters  of  C  will  each 
take  one-fourth  of  one-third  of  the  estate.  This  taking 
by  representation  is  called  succession  per  stirpcs. 

The  general  rule  prevailing  in  this  country  is  that 
where  the  heirs  are  related  in  the  same  degree,  they 
take  share  and  share  alike.  When  related  in  different 
degrees,  they  take  per  stirpes.1  Thus,  in  the  illustra- 
tion, the  ten  children  of  A,  B,  and  C  would  each  take 
one-tenth  of  the  estate  of  the  ancestor. 

5 .  On  the  failure  of  hneal  descendants  of  the  per  son  last 
seised,  the  inheritance  shall  descend  to  his  collateral  rela- 
tions, BEING  OF  THE  BLOOD  OF  THE  FIRST  PURCHASER, — 

1  4  Kent  Comm.  391. 


56  A   REVIEW   IN   LAW  AND   EQUITY. 

i.  e.,  of  the  person  who  first  received  the  grant  of  the  es- 
tate from  the  lord.  According  to  the  ancient  law,  if  A 
acquired  a  feud  by  purchase  and  died  leaving  no  issue, 
the  feud  would  escheat.  Even  his  brother  could  not  take, 
as  he  was  not  descended  from  A,  the  first  purchaser. 

A  feud  acquired  by  descent  was  called  ^feudum  an- 
tiquum,  and  in  case  A  acquired  a  feud  by  descent,  and 
died  without  issue,  B  his  brother  could  inherit  as  being 
of  the  blood  of  the  ancestor.  When  the  rigor  of  the 
feudal  system  was  abated,  in  order  to  admit  collaterals 
to  the  inheritance  in  the  case  of  feuds  acquired  by  pur- 
chase, it  was  customary  in  grants  of  feuds  to  grant 
them  "to  be  held  as  feuda  antiqua"  that  is,  to  be  held 
with  all  the  qualities  of  a  feud  derived  from  the  pur- 
chaser's ancestors. 

6.  The  collateral  heir  of  the  person  last  seised  must  be 
his  next  collateral  kinsman  of  the   whole   blood.     The 
half-blood,  at  common  law,  could  never  inherit. 

If  A  should  die  leaving  two  sons  by  different 
mothers,  B,  the  elder,  and  C,  the  younger,  and  B 
should  die,  never  having  been  actually  seised,  it  is  true 
that  C,  the  half-brother,  would  inherit,  not,  however, 
in  any  sense  as  the  heir  of  B,  but  as  being  the  heir  of 
the  person  last  actually  seised,  namely,  A.  A  kinsman 
of  the  whole  blood  is  one  descended  from  the  same 
pair  of  ancestors. 

7.  In    collateral  inheritances,   kindred  derived  from 
male  ancestors,  however  remote,  shall  be  admitted  before 
those  derived  from  female  ancestors,  however  near, — i.  e., 
the  relatives  on  the  father's  side,  no  matter  how  re- 
mote they  may  be,  are  admitted  in  preference  to  rela- 
tives on  the  mother's  side,  however  near.     An  uncle  on 
the  father's  side  would  be  admitted  in  preference  to  an 
uncle  on  the  mother's  side.1 

1  For  discussion  of  these  rules  see  2  Bl.  Comm.  208  et  seq. ;  4  Kent 
Comm.  375  et  seq. 


CHAPTER  XII. 

TITLE   BY   PURCHASE. 

Purchase  is  the  possession  of  lands  and  tenements 
which  a  man  has,  by  his  own  act  or  agreement,  and  not 
by  descent.1 

There  are  five  methods  of  acquiring  a  title  to  estates 
by  purchase:  escheat,  forfeiture,  occupancy, prescription, 
alienation? 

1.  Escheat  is  the  means  by  which,  on  the  extinc- 
tion of  inheritable  blood  on  the  part  of  the  person  last 
seised,  the  lord  acquired  title  to  the  estates  of  his  ten- 
ant.    Actual  entry  by  the  lord  or  the  suing  out  of  a 
writ  of  escheat,  was  necessary  in  order  to  complete  his 
title.3 

2.  Forfeiture  is  the  punishment  annexed  by  law  to 
some  illegal  act  or  negligence  in  the  owner  of  real 
property,  whereby  he  loses  all  his  interest  therein.    At 
common-law  forfeiture  took  place  in  eight  ways  4 

a.  By  crimes   and    misdemeanors,  such  as  treason, 
felony,  etc. 

b.  By  alienation  contrary  to  law.     Thus,  if  a  tenant  for 
life  alienated  in  fee  simple,  he  would  forfeit  his  life  es- 
tate.    There  is  no  forfeiture  on  this  ground  to-day.    In 
the  illustration  the  tenant  would  simply  convey  his  life 
estate  by  his  deed  in  fee  simple. 

c.  By  non-presentation  to  a  benefice. 

d.  By  simony  or  the  corrupt  presentation  of  any  one 
to   an    ecclesiastical  benefice    or  living  for  a  reward ; 

1  2  Bl.  Comm.  240  ;  4  Kent  Comm.  441.  s  2  Bl.  Comm.  244. 

8  Id.  245.  4  2  Bl.  Comm.  267  et  seq. 

(57)' 


58  A    REVIEW   IN   LAW   AND    EQUITY. 

whereby  the  person  entitled  to  present  to  the  benefice 
or  living  lost  his  right  to  do  so. 

e.  By  breach,  or  non-performance  of  a  condition  an- 
nexed to  an  estate. 

f.  By  waste.     Waste  is  an  injury  to  houses,  gardens, 
trees,  and  other  corporeal  hereditaments  to  the  disheri- 
son of  the  remainder-man  or  r'eversioner  in  fee  simple  or 
fee  tail. 

g.  By  breach  of  copyhold  customs,  as  by  disclaiming 
to  hold  of  the  lord. 

//.  By  bankruptcy,  whereby  the  title  to  property 
passes  from  the  bankrupt  to  his  assignees. 

3.  Occupancy   is  the   taking   possession    of    things 
which  before  belonged  to  nobody.     The  only  instance 
at  the  common  law  where  a  title  to  real  property  could 
be    gained    by    occupancy    has    been    explained    on 
page  31. 

By  alluvion  is  meant  the  formation  of  soil  by  the 
action  of  water ;  by  dereliction,  the  rendering  of  soil 
available  by  the  subsidence  of  water. 

In  either  case,  the  property  in  the  soil  thus  formed 
or  rendered  available  lies  in  the  adjacent  owner.' 

4.  Prescription   is  the  title  acquired  in  incorporeal 
hereditaments   by  virtue  of    their  immemorial    enjoy- 
ment  by  a  person  and  those  under  whom  he  claims. 
By  statute  32  Henry  VIII.  (1541),  sixty  years'  enjoy- 
ment  was   essential    to   prove   title    by   prescription. 
Twenty  years'  enjoyment  is  now  essential.     When  a 
person  prescribed  in  himself  and  those  whose  estate  he 
held,  he  was  said  to  prescribe  in  a  que  estate. 

When  he  prescribed  as  having  received  the  right 
from  his  ancestors,  he  was  said  to  prescribe  in  himself 
and  his  ancestors.  In  the  former  case  he  can  prescribe 
for  nothing  that  is  not  appendant  or  appurtenant  to 

1  2  Bl.  Comm.  281  ;  i  Wash.  R.  P.  107  et  sef.     See/<W,  page. 
*  2  Bl.  Comm.  261. 


TITLE   BY   PURCHASE.  59 

lands ;  in  the  latter  he  can  prescribe  for  anything  that 
can  lie  in  grant,  not  only  for  things  appendant  or  ap- 
purtenant, but  also  for  such  as  may  be  in  gross, — /.  e., 
rights  pertaining  to  persons  and  having  no  connection 
with  the  ownership  of  land.1 

5.  By  alienation  is  meant  any  method  whereby 
estates  are  resigned  by  one  man  and  accepted  by  an- 
other. The  legal  evidences  of  this  transfer  of  prop- 
erty from  one  person  to  another  are  called  common  as- 
surances. They  are  of  four  kinds.1 

a.  By  matter  in  pais,  or  deed,  namely,  an  assurance 
transacted  between  private  persons  in  pais, — i.  e.,  in  the 
country ;    and,  under  the  ancient  common  law,  upon 
the  very  property  to  be  transferred. 

b.  By  matter  of  record, — i.  e.,  an  assurance  transacted 
in  the  public  courts  of  record. 

c.  By  special  custom  prevailing  in  certain  localities,  or 
applying  to  certain  species  of  property. 

d.  By  devise. 

1  2  Bl.  Comm.  263  et  seq.  *  Id.  294. 


CHAPTER  XIII. 

ALIENATION   BY   DEED,   ETC. 

A  deed  is  a  writing  sealed  and  delivered  by  the 
parties.  A  deed  made  by  two  or  more  parties  was 
called  an  indenture,  as  regularly  there  were  as  many 
copies  as  there  were  parties.  The  copies  were  made 
on  one  piece  of  parchment  and  were  then  severed  from 
one  another  by  an  indented  line.  A  deed  executed  by 
one  party  was  not  indented,  but  was  cut  in  a  straight 
line  and  was  called  a  deed  poll.1 

There  are  eight  requisites  for  every  good  deed.2 

1.  There   must    be  parties  able  to   contract,  and    a 
proper  subject-matter    to   be  contracted  for.     A    good 
deed    could   not  be    given  to   an  imaginary   tract    of 
land.3 

2.  There  must  be  a  good  and  sufficient  consideration, 
and  to  bind  creditors  the  consideration  must  be  valu- 
able.4 

3.  The  deed  must  be  written  or  printed,  and  upon 
paper  or  parchment.5 

4.  The  matter  written   must  be  legally  and  orderly 
set  forth.' 

5.  The  deed  must  be  read  when  any  of  the  parties 
desire  it,  and  if  not  read  at  the  request  of  any  party,  it 
is  void  as  to  him.7 

6.  It  must  be  signed  and  sealed.     In   some  States  a 

1  z  Bl.  Comm.  295  ;  4  Kent  Comm.  450  ;  Tied.  R.  P.  §  786. 

2  2  Bl.  Comm.  296  et  seq.  *  Tied.  R.  P.  §§  791,  797,  799. 

4  Tied.  R.  P.  §  801  ;  3  Wash.  R.  P.  *6i3  ;  see  Washband  v.  Wash- 
band,  37  Conn.  424. 

5  Tied.  R.  P.  §  788.  6  2  Bl.  Comm.  297. 
7  2  Bl.  Comm.  304 ;  Tied.  R.  P.  §  811. 

(60) 


ALIENATION   BY   DEED,   ETC.  6l 

scroll  with  the  pen  may  take  the  place  of  a  seal ;  in 
others  not.1 

7.  It  must  be  delivered.     A  deed  takes  effect  only 
from  its  delivery.     In  the  absence  of  evidence  to  the 
contrary,  the  delivery  is  presumed  to  have  taken  place 
on  the  day  of  the  date.     A  deed  delivered  to  a  third 
person  to  be  held   by  him   until  the  performance  of 
some  condition  is  called  an  escrow.     A  delivery  prior 
to  the  performing  of  the  condition  is  void.     An  escrow 
takes  effect  from  the  time  of  its  delivery  to  the  grantee.8 

8.  It  must  be  attested,  or  executed  in  the  presence 
of  witnesses.      As   a   general    rule  attestation  is  not 
necessary  in  the   United  States  in  order  to  give  the 
deed  validity  between  the  parties.     It  is  required  only 
for  purposes  of  record.     In  some  States  an  acknowl- 
edgment before  a  magistrate    is  requisite  to  the  va- 
lidity of  a  deed  as  between  parties.3    It  might  be  added 
as  a  ninth  essential  of  a  deed,  so  far  as  third  parties  are 
concerned,  that  it  be  recorded.     An  innocent  purchaser 
without  notice  of  an  unrecorded  deed,  takes  a  good  title 
as  against  such  a  deed.     The  recording  of  a  deed  is 
constructive  notice  of  the  deed  to  all  the  world.     But 
the  record  of  a  deed  which  does  not  comply  with  all 
statutory  requirements  and  formalities  is  notice  to  no 
one.4 

The  general  American  doctrine  is,  that  when  a 
grantee  has  left  a  deed  with  the  proper  officer  for 
record,  he  has  done  all  that  can  be  required  of  him, 
and  that  any  failure  on  the  part  of  the  official  to  actu- 

1  4  Kent  Comm.  450  ;  Tied.  R.  P.  §§  807,  808. 

2  Tied.  R.   P.  §§  812,  815  ;    4  Kent  Comm.  454  ;    see  Johnson  v. 
Bard,  4  Johns.   230  ;   Jackson  v.   Rowland,   6  Wend.   666  ;    Stiles  v. 
Brown,  16  Vt.  563. 

3  3  Wash.  R.  P.  *572  ;  see  Tied.   R.    P.  §  809  ;    Dole  v.  Thurston, 
12  Met.  157  ;  Dougherty  v.  Randall,  3  Mich.  581. 

4  Tied.  R.  P.  §§  816,  817  ;    3  Wash.   R.   P.  *5gi  ;   4   Kent  Comm. 
456;  Galpin  v.  Abbott,  6  Mich.  17  ;  Blood  v.  Blood,  23  Pick.  80- 


62  A   REVIEW   IN   LAW   AND    EQUITY. 

ally  place  the  deed  on  record,  or  any  error  in  the  re- 
cording, does  not  affect  the  rights  of  the  grantee.  That 
is,  if  B,  the  grantee,  leaves  a  properly  executed  deed 
with  the  proper  official,  but  a  proper  record  is  not 
made,  B  holds  the  property  as  against  any  subsequent 
claimant  who  may  have  been  misled  by  the  imperfect 
record.  This  is  not  the  universal  doctrine,  however.1 
The  following  are  the  FORMAL  parts  of  a  deed  :3 

a.  The  premises,  which  commonly  contain  the  names 
of  the  parties,  the  consideration,  the  estate  conveyed, 
and  a  description  of  the  property.     In  the  description 
of  land  known  and  fixed  monuments  control  courses  and 
distances.     Metes  and  bounds,  if  certain,  convey  all  the 
land  included  within  them,  though  the  amount  thus 
included  differs  from  the  amount  of  land  as  stated  in 
the  deed.3 

b.  The  habendum,  which  also  points  out  the  estate, 
or  interest   conveyed.      The   habendum   may,  in   this 
respect,  enlarge,  qualify,  or  explain  the  premises,  but  it 
cannot  be  repugnant  to  them.     If  an  estate  were  given 
in  the  premises  to  A  in  fee  simple,  and   in  the  haben- 
dum to  A  in  fee  tail,  the  latter  would  prevail  and  A 
would  take  an  estate  tail. 

If  an  estate  was  granted  to  A  in  fee  simple,  how- 
ever, in  the  premises,  and  in  the  habendum  it  was 
limited  to  A  for  life,  the  premises  would  prevail,  and  A 
would  take  an  estate  in  fee  simple.4  The  words  "  to 
have,  etc.,"  form  the  habendum  clause. 

c.  The    tenendum    (to  hold)  was  anciently  used    to 
indicate  by  what  species  of  tenure  the  estate  was  held. 

d.  The    reddendum,    which    contains   the   exceptions 

1  See  Manhattan  Co.  v.  Laimbeer,  108  N.  Y.  578  ;  Chandler  et  al.  v 
Scott,  127  Ind.  226. 

2  Bl.  2  Comm.  298  et  seq. 

3  4  Kent  Comm.  466  ;  Tied.  R.  P.  §§  826,  827,  831. 

4  2  Bl.  Comm.  298  ;  see  Tied.  R.  P.  §  844  ;  3  Wash.  R.  P.  *642. 


ALIENATION   BY   DEED,   ETC.  63 

and  reservations,  if  there  are  any.  A  reservation  is  a 
creation  of  some  new  right  in  the  grantor,  out  of  the 
thing  granted,  as  a  reservation  of  a  right  of  way  over 
the  premises  conveyed.  An  exception  is  always  of  a 
part  of  the  thing  granted,  as  a  conveyance  of  a  cer- 
tain tract  of  land  by  metes  and  bounds,  "  excepting 
the  trees  and  woods."  A  reservation  cannot  be  made 
in  favor  of  a  third  party,  on  account  of  lack  of 
privity.1 

e.  The  condition,   if  there  is  any, — i.  e.,  a  clause  of 
contingency,   on  the  happening   of  which   the  estate 
granted  may  be  defeated. 

f.  The  warranty,  by  which  the  grantor,  for  himself 
and  his  heirs,  warrants  and  secures  to  the  grantee  the 
estate  granted.     Warranties  were,  at  common  law,  of 
two  kinds,  lineal  and  collateral. 

1.  Lineal  warranty  was  where  the  heir  derived,  or 
might  derive,  his  title  to  the   land    warranted  either 
from  or  through  the  ancestor,  who  made  the  warranty. 
As,  if  A  has  two  sons,  B,  the  elder,  and  C,  the  younger, 
and  upon  being  disseised,  either  A  or  B  releases  to  the 
disseisor  with  warranty  ;  this  would   be  a   lineal  war- 
ranty with  regard  to  C,  the  younger  son. 

2.  Collateral   warranty   was   where   the   heir's   title 
neither  was   nor  could    have  been  derived   from   the 
warranting  party.     Thus,  if  a  younger  brother  should 
release,  with   warranty,  to  his    father's   disseisor,  this 
would  be  collateral  to  his  elder  brother.     In  either  case 
the  heir  was  not  bound  to  make  restitution  to  his  an- 
cestor's grantee,  if  the  latter  were  evicted,  unless  he 
had  received  sufficient  lands  to  enable  him  to  do  so 
from  the  ancestor.     But  in  both  lineal  and  collateral 
warranties,  the  heir  was  barred  from  asserting  any  title 
to  the  lands  warranted,  because,  if  successful  in  his  suit, 
he  would   at  once  have    assets   descended    from    the 

1  Tied.  R.  P.  §  843  ;  3  Wash.  R.  P.  ^645. 


64  A   REVIEW    IN    LAW   AND   EQUITY. 

warranting  party,  a  fact  which  would  render  him  liable 
to  the  said  party's  grantee.1 

g.  Common  law  warranties  never  had  any  operation 
in  this  country.8 

Their  purpose  is  accomplished  by  the  covenants, 
which  are  clauses  of  agreement  by  which  the  grantor 
stipulates  for  the  truth  of  certain  facts  or  binds  himself 
to  perform  or  give  something  to  the  grantee.  THERE 
ARE  COMMONLY  FIVE  COVENANTS  in  a  deed  : 

(i).    That  the  grantor  is  lawfully  seised. 

(2).    That  he  has  a  good  right  to  convey. 

(3).   That  the  land  is  free  from  encumbrances. 

(4).    That  the  grantees/tall  quietly  enjoy. 

(5).  That  the  grantor  will  warrant  and  defend  the 
title  against  all  lawful  claims? 

(i),  (2)  and  (3)  are  personal  covenants  and  do  not 
run  with  the  land.  They  are  broken,  if  they  are 
broken  at  all,  as  soon  as  they  are  made,  and  the  grantee 
has  a  right  of  action,  which,  at  common  law,  could 
not  be  sold  or  assigned.  If  A  conveys  to  B,  with  the 
covenant  against  encumbrances,  and  B  conveys  to  C, 
C  cannot  avail  himself  of  A's  covenant  with  B.4 
"""(4)  and  (5)  are  covenants  that  run  with  the  land ; 
that  is,  they  are  covenants  the  right  to  sue  upon  which 
when  broken  passes  to  any  subsequent  grantee.  Thus 
if  A  should  convey  to  B  with  covenants  (4)  and  (5),  and 
by  successive  conveyances  the  land  should  come  to  M, 
then  if  M  were  evicted  he  could  sue  A  upon  the  cove- 
nants (4)  and  (5)  contained  in  the  deed  from  A  to  B.6 

If  covenants  (i)  and  (2)  are  broken,  the  measure  of 
damages  is  the  consideration  money  and  interest.  As  a 
general  rule,  the  grantee  can  recover  nothing  for  im- 
provements or  increased  value  of  the  land.  If  cove- 

1  2  Bl.  Comm.  301.  5  4  Kent  Comm.  470. 

3  4  Kent  Comm.  471  ,  See  Tied.  R.  P.  §  849. 

4  Id.  §§  450,  452  5  3  Wash  R.  P.  659  ;  Tied.  R.  P.  §  862. 


ALIENATION   BY   DEED,   ETC.  65 

nant  (3)  is  broken,  the  damages  are  the  same  as  in 
covenants  (i)  and  (2),  if  the  encumbrances  exhaust 
the  value  of  the  land.  If  the  grantee  has  not  extin- 
guished the  encumbrance  and  there  has  been  no 
eviction  he  is  entitled  only  to  nominal  damages. 

If  covenant  (4)  is  broken  by  eviction,  the  measure 
of  damages  is  the  same  as  in  covenants  (i)  and  (2).  If 
covenant  (5)  is  broken,  in  some  States  the  measure  of 
damages  is  the  same  as  in  covenants  (i)  and  (2), 
while  in  others  it  is  the  value  of  the  land  at  the  time  of 
eviction.1 

A  deed  may  be  avoided  in  five  ways.* 

1.  By  erasure,  interlineation,  or  other  alteration  in 
any  material  part,  unless  a  memorandum  accounting  for 
the  alteration  be  made  at  the  time  of  the  execution. 
This  common-law  rule  has  been  greatly  modified.    The 
question    as  to  whether   an    alteration  was   made  be- 
fore or  after  execution  is  one  for  the  jury,  who  should 
presume  that  the  alteration  was  properly  made,  unless 
there  are  suspicious  circumstances  to  the  contrary.3 

If  the  alteration  is  suspicious  on  its  face,  as  if  it  were 
in  a  different  handwriting  from  that  of  the  rest  of  the 
deed,  the  burden  of  proof  should  be  on  the  party  offer- 
ing the  instrument  to  account  for  it.4 

2.  f^y  breaking  off  Q*  defacing  the  seal.     This  must  be 
by  the  party  to  whom  the  other  is  bound.5     An  acci- 
dental injury  to  the  seal  does  not  affect  the  validity  of 
the  deed. 

3.  By  delivering  it  up  to  be  cancelled. 

4.  By  the  disagreement  of  those  whose  concurrence  is 

1  4  Kent  Comm.  474;  Tied.   R.   P.  §861  ;   3  Wash.   R.   P.  *6?3 
et  seq. 

2  2  Bl.  Comm.  308. 

3  Beaman's  Admrs.  v.  Russell,  20  Vt.  213  ;  for  collected  cases  see  i 
Greenl.  Ed.  §  564  ;  there  is  considerable  conflict  of  authority. 

4  Jackson  v.  Jacoby,  9  Cow.  125  ;  Wilde  v.  Armsby,  6  Cush.  314. 

5  Touchstone,  c.  4,  §§6,  2. 


66       .  A    REVIEW   IN   LAW   AND   EQUITY. 

necessary  to  the  validity  of  a  deed,  as  in  the  case  of  a 
wife's  refusing  to  relinquish  dower. 

5.  By  decree  of  court,  as  in  case  of  fraud,  etc.,  in  the 
obtaining  of  the  deed. 

Conveyances  are  divided  into  two  classes,  convey- 
ances at  common  law  and  conveyances  which  arise  from 
the  Statute  of  Uses. 

Conveyances  at  common  law  are  divided  into  pri- 
mary or  original  conveyances,  by  which  an  estate  is 
created,  and  secondary  or  derivative  conveyances,  by 
which  some  previously  created  estate  is  enlarged, 
restrained,  transferred,  or  extinguished.1 

Of  the  primary  conveyances  there  are  six  species — 
feoffment,  gift,  grant,  lease,  exchange,  partition. 

i.  A  feoffment  was  the  mode  of  conveyance  in  the 
earliest  periods  of  the  common  law.  It  meant  origi- 
nally the  conveyance  of  a  feud  or  fee,  but  came  in 
time  to  signify  the  conveyance  of  an  inheritance  in  fee. 
The  instrument  itself  was  in  form  much  like  the  forms 
used  for  the  same  purpose  in  the  New  England  States.2 
The  peculiarity  was  that  it  was  accompanied  with 
actual  delivery  of  possession  of  the  land,  termed  livery 
of  seisin.  The  feoffor  entered  on  the  land  with  the 
deed  of  feoffment  and  gave  to  the  feoffee  a  clod  or  turf 
in  the  name  of  seisin  of  all  the  lands  contained  in  the 
deed.  This  was  called  livery  of  seisin  in  fact. 

Livery  of  seisin  in  law,  or  symbolical  livery,  was  also 
permitted,  and  occurred  when,  it  being  for  any  reason 
undesirable  to  actually  enter,  the  parties  went  in  sight 
of  the  land  and  the  feoffor  directed  the  feoffee  to  enter 
and  take  possession.  Livery  in  law  must  be  given  and 
received  by  the  parties  themselves.  Livery  in  fact 
could  be  performed  by  attorneys  on  both  sides.3 

2..  A  gift  was  the  instrument  by  which  an  estate  tail 

1  z  Bl.  Comm.  309  et  seq.  *  4  Kent  Comm.  480. 

3  2  Bl.  Comm.  315,  316. 


ALIENATION   BY   DEED,    ETC.  6/ 

was  created.     It  differed  from  a  feoffment  only  in  the 
estate  created  by  it. 

3.  A  grant  was  the  instrument  by  which  the  title  to 
incorporeal  hereditaments  was  conveyed.     The  delivery 
of  the  instrument  perfected   the  conveyance,  no  deliv- 
ery of  the  property  being  possible.     Jt  differs  from  a 
feoffment  only  in  the  nature  of  the  property  conveyed. 

4.  A  lease  is  a  conveyance  of  lands  and  tenements 
for  a  less  time  tlian  the  lessor  has  in  the  premises ;  as  if 
A,  the  owner  of  an  estate  in  fee,  should  lease  to  B  for 
life ;  or  B,  the  tenant  for  life,  should  sublet  to  C  for 
years. 

5.  An  exchange  is  the  mutual  grant  of  equal  interests, 
the  one  in  consideration  of  the  other.     The  estates  ex- 
changed must  be  equal  in  quantity,  as  fee  simple  for 
fee  simple,  a  lease  for  ten  years  for  a  lease  for  ten  years, 
etc.     Livery  of  seisin,  even  in  the  conveyance  of  free- 
holds, is  not  necessary. 

6.  A  partition  is  when  two  or  more  joint  tenants, 
tenants  in  common,  or  coparceners  agree  to  divide  the 
lands  so  held  among  them,  in  severalty. 

The  secondary  conveyances  are  divided  into  five  spe- 
cies— release,  confirmation,  assignment,  surrender,  and 
defeasance. 

1.  A  release  is  a  conveyance  of  a  man's  rights  in 
lands  and  tenements  to  another  who  has  an  estate  in 
possession  ;  as  if  A,  the  remainder-man  or  reversioner, 
should  release  to  B,  a  tenant  for  life. 

2.  A  surrender  is  a  conveyance  by  which  a  man  hav- 
ing an  estate  in  possession  conveys  this  estate  to  the 
remainder-man  or  reversioner ;    as  if  A,  a  tenant  for 
years,  should  release  his  term  to  B,  the  reversioner. 

3.  A  confirmation  is  a  conveyance  by  which  a  void- 
able estate  is  made  sure,  or  a  particular  estate  is  in- 
creased.    If  A,  a  tenant  for  life,  leases  to  B  for  forty 
years,  and  C,  the  reversioner,  confirms  the  lease  to  B, 


68  A   REVIEW   IN   LAW   AND   EQUITY. 

the  latter  becomes  sure.  The  second  branch  of  the 
definition  is  illustrated  by  the  case  given  under  the 
head  of  release. 

4.  An  assignment  is  the  transfer  from  one  person  to 
another  of  the  wliole  of  an  interest  in  any  estate  ;  it  is 
commonly  applied   to  estates  for  life  or  years.     It  dif- 
fers from  a  release  only  in  that,  by  an  assignment,  the 
whole  interest  is  conveyed,  while  in  a  lease  there  is  a 
reversion  in  the  lessor. 

5.  A  defeasance   is  a  collateral  deed,  made  at  the 
same  time  with  another  conveyance,  containing  certain 
conditions  upon  the  performance  of  which  the  estate 
created  by  the  conveyance  may  be  defeated.     Illustra- 
tions may  be  found  under  mortgages.1 

1  For  authority  upon  all  these  conveyances  see  2  Bl.  Comm.  310 
et  seq. 


CHAPTER    XIV. 

USES,   STATUTES  OF,   CONVEYANCES  UNDER,  ETC. 

I.  In  order  to  understand  the  subject  of  uses,  and 
the  various  results  which  developed  from  them,  it  is 
necessary  to  briefly  survey  the  statutes  of  mortmain. 

At  common  law,  corporations  could  not  become 
purchasers  of  land  without  a  license  from  the  king  ;  for 
the  king,  as  being  the  ultimate  lord  of  every  fee,  ought 
not  to  be  deprived  of  his  right  of  escheat,  without  his 
consent,  as  would  be  the  case  in  grants  to  corporations 
where  the  extinction* of  inheritable  blood  was  practi- 
cally impossible.  Alienation  to  a  corporation  was 
called  alienation  in  mortmain  (in  mortua  manu}. 
When  it  became  difficult  for  ecclesiastical  corporations 
to  obtain  these  licenses,  they  resorted  to  various  de- 
vices to  avoid  the  necessity  of  obtaining  them,  and  the 
so-called  statutes  of  mortmain,  extending  through  a 
long  series  of  years,  from  1217  to  1536,  were  passed  to 
thwart  the  cunning  of  the  ecclesiastics. 

The  first  plan  of  the  churches  was  to  receive  con- 
veyances from  persons  wishing  to  convey  their  lands  to 
them,  and  to  reconvey  them  instantly  to  the  grantors, 
to  be  held  by  them  as  tenants  of  the  corporations. 
Then  by  some  pretext  of  forfeiture  or  escheat,  the  cor- 
porations would  take  possession  of  the  lands.  This 
course  was  met  by  a  charter  of  Henry  III.  (1217),  en- 
acting that  all  such  attempts  should  be  void  and  that 
all  lands  thus  alienated  should  be  forfeited  to  the  lord. 
This  charter  applied  only  to  ecclesiastical  houses,  and 
not  to  bishops,  etc.  The  aggregate  ecclesiastical  or- 
ganizations also  evaded  it  by  taking  long  leases,  as  of  a 

(69) 


7O  A  REVIEW  IN   LAW  AND  EQUITY. 

thousand  years,  which  were  not  within  the  terms  of 
the  charter.  This  led  to  the  statute  de  religiosis  of  7 
Edward  I.  (1281),  which  enacted  that  no  person  should 
buy,  sell,  or  receive,  under  the  pretence  of  a  gift  or  term 
of  years  ;  or  should  by  any  act  of  ingenuity  appro- 
priate to  himself  any  lands  or  tenements  in  mortmain, 
the  penalty  being  forfeiture.  To  avoid  this  act,  the 
corporations  resorted  to  what  subsequently  developed 
into  a  method  of  barring  estates  tail,  and  which  was 
called  a  common  recovery.  They  alleged  some  fictitious 
title  to  land,  brought  suit  against  the  tenant,  who  was 
in  collusion  with  them,  and  recovered  the  land  by  virtue 
of  their  alleged  prior  title.  Of  course,  collusion  on  the 
part  of  the  tenant  was  essential  to  this  proceeding. 
Against  this  device  the  statute  of  13  Edw.  I.  was 
aimed,  directing  that  in  such  cases  a  jury  should  try 
the  true  right  of  the  demandants,  and  if  no  right  was 
found  to  exist,  the  land  should  be  forfeited  to  the  lord. 
The  next  device  of  the  ecclesiastics  was  the  invention 
of  uses,  the  idea  of  a  use  being  obtained  from  the  fidei 
commissum  of  the  civil  law,  which  was  the  disposal,  usu- 
ally by  will,  of  an  inheritance  to  one,  in  the  confidence 
that  he  would  convey  it  or  dispose  of  the  profits  ac- 
cording to  the  will  of  another. 

A  use  at  common  law  was  where  the  legal  estate  of 
lands  was  in  A,  while  the  right  to  the  rents  and  profits 
was  in  B.1  A's  estate  was  called  the  legal  estate,  be- 
cause it  was  the  only  estate  that  the  common-law 
courts  recognized,  while  the  use  in  B  was  enforced  by 
courts  of  equity.  By  this  device,  namely,  the  invention 
of  an  estate  never  contemplated  by  the  statutes  of 
mortmain  and  not  within  their  reach,  the  ecclesiastics 
hoped  to  evade  them.  The  statute  of  15  Richard  II. 
(1392)  met  the  emergency,  by  providing  that  the 
statutes  of  mortmain  should  thenceforth  operate  upon 

1  4  Kent  Comm.  290. 


USES,  STATUTE  OF,  CONVEYANCES  UNDER,  ETC.     71 

uses.  The  latter  had  become  firmly  established,  how- 
ever, and  although  no  longer  available  for  the  purpose 
of  eluding  the  statutes  of  mortmain,  they  were  so  use- 
ful for  other  ends  that  they  increased  in  importance 
and  number.  Among  other  advantages,  by  resorting 
to  uses  lands  could  be  devised,  a  thing  impossible  at 
common  law.  The  owner  of  a  use  could  devise  it,  and 
the  common  method  was  that  A  should  convey  his 
lands  to  B,  to  hold  to  the  use  of  A  during  life,  and  on 
his  death  to  such  uses  as  he,  A,  should  declare  in  his 
last  will  and  testament.  If  an  estate  were  given  to  B 
and  his  heirs,  to  the  use  of  C  and  his  heirs,  C  could 
devise  his  use  by  will. 

Uses,  however,  opened  the  door  to  fraud,  as  they 
occasioned  general  uncertainty  as  to  the  true  owner- 
ship of  land.  Moreover,  they  could  not  be  reached  by 
legal  process  by  the  creditors  of  the  ccstui  que  use,  and 
neither  curtesy  nor  dower  existed  in  them. 

II.  To  remedy  these  evils  several  statutes  were 
passed,  and  among  them  the  so-called  "  Statute  of 
Uses,"  27  Henry  VIII.  (1535),  which  enacted,  "  that 
when  any  person  shall  be  seised  of  lands  to  the  use  of 
any  other  person,  the  person  entitled  to  the  use  shall 
thenceforth  be  seised  of  the  land."  That  is,  the  statute 
united  the  possession  to  the  use,  making  the  cestui  que 
use  the  legal  as  well  as  the  equitable  owner  of  the  es- 
tate. This  was  termed  executing  the  use.  The  statute 
aimed  to  destroy  the  estate  of  the  feoffee  to  uses.  If, 
after  the  passage  of  the  statute,  an  estate  were  given 
to  A  and  his  heirs  to  hold  to  the  use  of  B  and  his  heirs, 
by  the  force  of  the  statute  the  legal  estate  in  A  would 
be  vested  in  B,  and  the  latter  would  be  as  completely 
in  possession  in  the  eye  of  the  law  as  if  there  had  been 
a  direct  feoffment  to  him.1 

1  See  2  Bl.  Comm.  268  et  seq.,  328,  335  ;  4  Kent  Comm.  49°-497  ; 
Tied.  R.  P.  §§  459-463  ;  Williams  R.  P.  *i$5  et  seq. 


72  A   REVIEW   IN   LAW   AND   EQUITY. 

The  object  of  the  statute  was,  however,  largely  de- 
feated by  the  construction  placed  upon  it  by  the  courts 
of  common  law.  They  decided  that  a  use  could  not 
be  limited  on  a  use,  that  such  a  limitation  was  void. 
By  this  construction,  if  an  estate  were  given  to  A  and 
his  heirs  to  the  use  of  B  and  his  heirs,  in  trust  for  C 
and  his  heirs,  the  statute  only  executed  the  first  use, — 
/.  e.,  gave  the  entire  estate  to  B  and  his  heirs,  and  the 
limitation  to  C  and  his  heirs  was  void.  There  was  no 
sound  reason  why  the  statute  should  not  have  exe- 
cuted any  number  of  uses,  nor  why  in  the  case  just 
mentioned,  when  it  had  placed  the  legal  estate  in  B,  it 
should  not  also  have  executed  the  use  in  C  and  given 
to  him  the  entire  estate. 

The  courts  of  equity,  however,  taking  advantage  of 
the  construction  of  the  common-law  courts,  held  that 
C  was  equitably  entitled  to  the  estate,  in  the  above 
case,  and  proceeded  to  enforce  his  right  as  they  had 
those  of  the  cestui  que  use,  prior  to  the  statute  of  uses, 
the  equitable  estate  being  called  a  trust  instead  of  a 
use. 

III.  Thus  the  only  practical  effect  of  the  statute  of 
uses  was  to  give  rise  to  three  new  species  of  secret 
conveyance.  By  the  statute,  when  a  use  was  created, 
the  possession  and  seisin  were  instantaneously  attached 
to  the  use,  and  no  delivery  of  possession  to  the  cestui 
que  use  was  essential  to  completely  vest  the  entire  es- 
tate in  him.  Hence  arose  : 

1.  The  covenant  to  stand  seised,   by  which    a   man, 
seised  of  lands,  covenants,  in  consideration  of  blood  or 
marriage,  that  he  will  stand   seised  of  the  same  to  the 
use  of  his  wife,  child,  or  kinsman,  etc.    The  instrument 
created  a  use,  and  the  statute  put  the  seisin  in  the  cestui 
que  use. 

2.  Bargain  and  sale ;  a  contract  by  which  the  bar- 
gainer, for  some  pecuniary  consideration,  bargains  and 

'-• 


USES,  STATUTE  OF,  CONVEYANCES  UNDER,  ETC.     73 

sells,  that  is,  contracts  to  convey  the  land  to  the  bar- 
gainee. This  creates  a  use  in  the  bargainee,  and  the 
statute  of  uses  united  the  possession  to  the  use,  thus 
making  the  title  perfect  in  the  bargainee. 

To  avoid  the  secrecy  with  which  estates  were  thus 
conveyed,  it  was  enacted  by  27  Henry  VIII.  (1535) 
that  such  bargains  and  sales  should  not  pass  a  free- 
hold unless  tJiey  were  recorded  within  six  months  in  one 
of  the  courts  of  Westminster  Hall  or  with  the  custos 
rotulorum  (the  chief  civil  officer  in  each  county).  This 
statute  did  not  apply  to  bargains  and  sales  of  chattel 
interests,  however,  and  this  led  to  the  invention  of 

3.  The  lease  and  release,  developed  by  Sergeant 
Moore.  A  bargain  and  sale  upon  some  pecuniary  con- 
sideration, for  one  year,  was  made  by  the  freeholder  to 
the  bargainee.  This  created  a  use  in  the  latter,  and 
the  statute  of  uses  vested  him  with  the  possession. 
Being  thus  in  possession,  a  release  was  given  him  by 
the  freeholder,  who  thus  conveyed  his  estate,  with  en- 
tire secrecy,  as  neither  the  lease  nor  the  release  were 
required  to  be  enrolled.1 

Uses,  as  they  existed  prior  to  the  statute  of  uses, 
are  divided  into  four  classes. 

a.  Shifting,  or  secondary  uses  take  effect  in  deroga- 
tion of  some  other  estate,  and  are  created  by  deed ;  as 
an  estate  to  A  and  his  heirs,  then  to  B  and  his  heirs, 
provided  B  pay  to  A  $100  at  a  certain  time. 

b.  Springing  uses  are  those  which  are  limited  to  arise 
on  a  future  event,  where  no  preceding  estate  is  limited, 
and  they  do  not  take  effect  in  derogation  of  any  preced- 
ing interest,  as  a  grant  by  A  to  B  in  fee,  to  the  use  of  C 
in  fee,  after  the  first  day  of  January  next.     Here  there 
would  be  a  resulting  use  to  A  until  the  first  of  January. 

1  For  these  conveyances  see  2  Bl.  Comm.  338  et  seq.\  Walker  Am. 
Law  401  ;  Tied.  R.  P.  §§  774  et  seq.\  Williams  R.  P.  *i8o  et  seq.\  4 
Kent  Comm.  492  et  seq. 


74  A   REVIEW   IN   LAW   AND   EQUITY. 

c.  Future   or   contingent   uses   are  those   which  are 
limited  to  take  effect  as  remainders :  as  a  grant  to  A 
in  fee  to  the  use  of  B  in  fee  on  his  return  from  Rome. 

d.  Resulting  uses  are  those  in  which  the  use  enured 
to  the  grantor  when  the  use  created  by  the  grantor  ex- 
pired or  could  not  vest,  or  was  not  to  vest  except  upon 
a  contingency,  as  in  £.' 

1  For  these  uses  see  2  Bl.  Comm.  334  ;  4  Kent  Comm.   296  ;  2 
Wash.  R.  P.  *I33,  *2?6  et  seq. 


CHAPTER   XV. 

ALIENATION   BY    MATTER    OF    RECORD    AND    SPECIAL 
CUSTOM. 

Assurances  by  matter  of  record  are  such  as  do  not 
depend  entirely  on  the  act  or  consent  of  the  parties, 
but  the  sanction  of  a  court  of  record  is  called  in  to 
preserve  and  be  a  perpetual  record  of  the  transfer  of 
property.  They  are  of  four  kinds, — private  acts  of 
Parliament,  the  kings  grants,  fines,  common  recoveries. 
Only  the  two  latter  require  particular  attention.' 

A  fine  is  an  amicable  settlement  of  a  suit,  by  leave 
of  court,  whereby  the  lands  in  question  are  acknowl- 
edged to  belong  to  one  of  the  parties.  The  term 
fines  was  used  because  this  proceeding /#/  an  end  to  all 
controversy  regarding  the  land  in  dispute.  Fines 
were  largely  resorted  to  as  a  means  of  barring  estates 
tail,  the  statute  of  37  Henry  VIII.  (1546)  giving  them 
this  effect,  an  effect  which,  with  considerable  doubt, 
they  were  thought  to  have  at  common  law.  There 
were  six  steps  in  the  levying  of  a  fine. 

1.  The  writ  of  covenant.     Suppose  A,  a  tenant  in 
tail,  wishes  to  alienate  his  estate  to  B,  so  as  to  bar  the 
entail,    by   a   fine.     B  begins  an  action   of  covenant 
against  A,  the  foundation  of  the  action  being  a  ficti- 
tious covenant  by  A  to  convey  the  lands  to  B. 

2.  The  license  to  agree.     A  is  now  supposed  to  make 
overtures  of  settlement  to  B,  and  the  latter  applies  to 
the  court  for  leave  to  agree  with  A,  a  request  which  is 
readily  granted. 

1  For  these  conveyances  and  statements  in  the  text  see  2  Bl.  Comm 
348  ttsty.;  Williams  R.  P.  *44  ttsty.  ;  I  Wash.  R.  P.  *7<>,  *7i. 

(75) 


76  A   REVIEW   IN   LAW   AND   EQUITY. 

3.  The  concord,  or  agreement,  which  is  an  acknowl- 
edgment from  A  that  the  lands  in    question   belong 
rightfully  to  B,     After  this  acknowledgment  is  made, 
A  is  called  the  cognizor  and  B  the  cognizee. 

4.  The  note,  which  is  merely  an  abstract  of  the  writ 
of  covenant  and  of  the  concord. 

5.  The  foot,  which  includes  the  whole  matter,  con- 
taining the  parties,   day,  year  and  place,  and    before 
whom  it  was  acknowledged. 

6.  The  proclamation,  which  was  the  reading  in  open 
court  of  the  record  of  the  fine.     The  number  of  read- 
ings varied  with  the  different  statutes  passed  in  relation 
thereto. 

The  effect  of  a  fine  was  to  bar  the  claims  to  the 
estate  thus  conveyed  of  parties,  privies,  and  strangers. 
By  parties  are  meant  the  cognizor  and  cognizee.  By 
privies,  such  persons  as  are  in  any  way  related  to  the 
parties  who  levy  the  fine.  Strangers,  or  all  other 
persons  in  the  world,  were  also  bound  by  the  fine,  un- 
less, within  five  years  after  the  proclamations  were  made, 
they  interposed  their  claims.  Persons  having  a  future 
interest,  as  a  remainder  or  reversion,  were  allowed  five 
years  in  which  to  assert  their  claims  after  their  rights 
accrued. 

Common  recoveries,  as  first  employed  by  the 
ecclesiastics,  were  mentioned  on  page  70.  They 
were  chiefly  used  as  a  means  of  barring  estates  tail, 
since  by  them  the  rights  of  remainder-man  and  rever- 
sioner  were  barred,  as  was  not  the  case  with  the  fine. 
Suppose  A,  the  tenant  in  tail,  wishes  to  convey  his  es- 
tate to  B  by  a  common  recovery.  B,  the  recoveror, 
begins  an  action  against  A,  the  recoveree,  by  a  writ 
called  zpracipe  quod  reddat,  in  which  he  alleges  that  A 
has  not  title  to  the  lands  in  question,  but  came  into 
possession  of  them  after  he,  B,  had  been  wrongfully 
turned  out  by  some  third  party.  A  appears  and  asks 


ALIENATION  BY  MATTER  OF  RECORD.      77 

that  C,  who  warranted  the  lands  to  him,  be  called  in  to 
defend  the  title.  This  is  called  the  voucher  of  C,  and 
C  is  called  the  vouchee.  C  appears  to  defend  the  title, 
whereupon  B  asks  leave  to  imparl,  or  confer  with,  the 
vouchee,  C,  in  private.  The  leave  is  granted,  where- 
upon the  vouchee  disappears  or  is  defaulted,  and  then 
judgment  is  given  in  favor  of  B,  to  recover  the  lands 
in  question  from  the  tenant  A,  while  A  receives  a  I 
judgment  for  lands  of  equal  value  against  C,  the 
vouchee.  The  vouchee,  C,  who  was  usually  the  crier 
of  the  court,  and  who  was  called  the  common  vouchee, 
had  no  lands,  so  that  although  A  had  a  nominal 
recompense  in  the  record  for  the  lands  lost  to  him,  it 
practically  amounted  to  nothing.  This  proceeding  was 
held  to  bind  the  remainder-man  and  reversioner, 
because  they  could  look  for  the  satisfaction  of  their 
claims  to  the  lands  supposed  to  have  been  recovered  by  A 
front  C,  the  common  vouchee.  Sometimes  two  or  even 
three  vouchees  were  employed,  but  the  proceeding  was 
in  this  case  substantially  like  the  one  just  described. 

Alienation  by  special  custom  applied  especially  to 
copyhold  estates,  which  could  not  be  conveyed  di- 
rectly from  one  copyholder  to  another  on  account  of 
their  peculiar  nature,  they  being  technically  estates  at 
will.1  The  method  of  conveyance  was  for  the  copy- 
holder to  make  to  the  steward  of  the 'lord's  court,  as 
agent  of  the  lord,  a  symbolic  delivery  of  the  lands,  to- 
gether with  an  instrument  called  a  surrender,  in  which 
the  surrenderor  states,  in  the  form  of  a  request,  the 
disposition  which  he  wishes  the  lord  to  make  of  the 
property,  the  person  to  whom  he  wishes  it  granted,  etc. 
The  common  law  rendered  the  execution  of  these  di- 
rections obligatory  on  the  lord.  In  order  to  devise  a 
copyhold,  it  must  be  surrendered  to  such  uses  as  should 
be  declared  in  the  will.2 

1  2  Bl.  Comm.  147.  2  Id.  365  et  seq. 


CHAPTER   XVI. 

ALIENATION  BY  DEVISE — LEGACIES. 

Alienation  by  devise  is  the  disposition  of  a  man's 
property  contained  in  his  last  will  and  testament.'  As 
has  been  seen,  lands  could  not  at  common  law  be  de- 
vised, and  hence  uses  were  resorted  to  for  that  purpose. 
When  the  statute  of  uses  temporarily  destroyed  these 
equitable  estates,  the  disposal  of  lands  by  will  was  im- 
possible, and  this  led  to  the  passage  of  the  statute  of 
wills,  32  Henry  VIII.  (1540),  five  years  after  the  adop- 
tion of  the  statute  of  uses,  by  which  all  persons  seised 
in  fee  simple,  except  married  women,  infants,  idiots, 
and  persons  of  non-sane  mind,  could  devise  two-tliirds 
of  their  lands  held  in  chivalry,  and  the  whole  of  those 
held  in  socage.  The  statute  of  12  Charles  II.  (1660) 
reducing  all  tenures  to  free  and  common  socage,  copy- 
holds being  the  only  important  exception,  enabled 
owners  to  devise  the  whole  of  their  real  property.2 
Originally,  a  man  could  devise  only  one-third  of  his 
.personal  property,  but  this  restraint  gradually  wore 
away  until  he  could  dispose  of  the  whole.3 
/  Parties. — The  general  rule  is  that  all  parties  are 
competent  to  make  a  devise,  with  the  exception  of 
those  mentioned  in  the  statute  of  wills.4  The  capacity 
of  married  women  in  this  respect  is  regulated  by  stat. 
ute  in  the  different  States.  Any  parties,  however  in 
competent  to  make  a  will,  can  be  themselves  devisees.6 

At  common  law  a  male  infant  could  devise  chattel? 

1  2  Bl.  Comm.  372.  "  Id.  375. 

3  Id.  492;  Schouler  Wills  §  14.  4  Id.  §  31. 

5  4  Kent  Comm.  506. 
(78) 


ALIENATION   BY   DEVISE — LEGACIES.  79 

at  the  age  of  fourteen,  and  a  female  at  the  age  of  tivelve. 
The  age  of  capacity  has  been  increased  throughout  the 
United  States,  and,  in  many,  an  infant  is  incompetent 
to  dispose  of  personal  property  by  will.  No  infant  could 
ever  devise  real  property,  except  by  special  custom.' 

Execution. — The  general  rule  is  that  a  will  of  real 
estate  must  be  in  writing  and  subscribed  by  the  testator, 
and  acknoivledged  by  him  in  the  presence  of  at  least  two 
witnesses,  who  are  to  subscribe  their  names  as  witnesses? 

At  common  law  a  will  of  personal  property  was  good 
without  writing.3  Such  a  will  is  called  a  nuncupative 
will.  These  wills  are  now  valid  only  when  made  by 
a  soldier  in  actual  military  service,  or  by  a  mariner 
while  at  sea.* 

Unless  there  be  a  statutory  regulation  to  the  con- 
trary, the  testator  need  not  sign  his  name  at  the  end  of 
the  will,  provided  that  the  body  of  the  will  be  in  his 
handwriting,  that  his  name  appear  in  it,  and  that  he 
intended  to  sign  the  instrument  by  thus  writing  his 
name  in  the  body  of  it.5 

The  testator  need  not  sign  the  will  in  the  presence 
of  the  witnesses.  An  acknowledgment  that  the  signa- 
ture is  his  is  sufficient.  The  witnesses  need  not  attest 
the  will  in  the  presence  of  each  other,  though  this  is 
usually  done.8 

When  the  witnesses  are  required  to  sign  in  the  pres- 
ence of  the  testator,  constructive  presence  is  sufficient, 
such  as  being  in  an  adjoining  room  and  in  such  a 
position  that  the  testator  can  see  them  if  he  wishes. 
But  if  the  testator  is  unconscious,  or  cannot  see  the  wit- 
nesses sign,  such  attestation  is  void."1 

1  4  Kent  Comm.  506  ;  Schouler  Wills  §§  39,  43  ;  i  Jarm.  Wills  33. 

'-  2  Bl.  Comm.  376;  4  Kent  Comm.  513. 

3  4  Kent  Comm.  516.  4  Schouler  Wills  §§  360,  364. 

5  Id.  £,  312;  i  Redf.  Wills.  *2ii. 

6  4  Kent  Comm.  515,  and  cases  cited  ;  i  Redf.  Wills  *2ig. 
1  Schouler  Wills  §g  340  et  seq. 


8O  A   REVIEW   IN    LAW   AND    EQUITY. 

Originally,  if  any  one  of  the  witnesses  was  a  legatee 
under  a  will,  the  will  was  void,  but  the  general  rule  now 
is  that  the  bequest  to  that  witness  only  shall  be  void.1 

Revocation. — Wills  may  be  revoked  in  four  ways.8 

1.  By  the  destruction  or  cancellation  of  a  will,  with 
the  intention  to  revoke  it.     Alterations  made  after  the 
will  has  been  executed  should  be  duly  attested,  or  they 
will  be  void. 

2.  By  the  making  of  a  subsequent  will. 

3.  By  such  a  change  of  circumstances  as  will  lead  to  the 
presumption  of  an  intention  to  revoke.     Such  a  change  of 
circumstances  consists  in  marriage  and  the  birth  of  a 
child,  subsequent  to  the  making  of  a  will.     Both  these 
circumstances  must  exist ;  one  alone  is  not  sufficient.3 

4.  By  the  disposal,   during  life,  of  the  property  de- 
vised.    In  case  a  man  by  will  disposes  of  a  particular 
parcel  of  land,  and  then  alienates  it,  the  will  is  void  as 
regards  the  land,  and  a  subsequent  repurchase  does  not 
bring  it  under  the  operation  of  the  will.4 

LEGACIES. 

Legacies  are  bequests  or  gifts  Q{ goods &nA.chattels\sy 

testament.6     They  may  be  divided  into  five  classes. 

1.  General    legacies,    or   those   which    are    not   an- 
swered by  any  particular  portion  of  the  estate  the  de- 
livery  of  which   will  alone    fulfil    the   intent   of  the 
testator ;  as  a  bequest  to  A  of  one  thousand  dollars. 

2.  Specific  legacies,  or  those  which  will  be  answered 
only  by  the  delivery  of  some  particular  portion  of  the 
estate ;"  as  a  bequest  to  A  of  ten  shares  of  some  par- 

1  Schouler  Wills  §  357;  2  Bl.  Comm.  377. 
8  See  Schouler  Wills  §  380. 

3  Brush  v.  Wilkins,  4  Johns.  Ch.   506  ;  Warner  z:    Beach,  4  Gray 
162  ;  Walker  v.  Hall,  34  Pa.  St.  483.     See  local  statutes. 

4  4  Kent  Comm.  529.     See  local  statutes.     Also  i  Redf.  Wills  *333 
et  seq. 

*  2  Bl.  Comm.  512.  6  2  Redf.  \Vills  *i32. 


ALIENATION   BY  DEVISE — LEGACIES.  8 1 

ticular  stock,  or  of  some  specific  piece  of  furniture.  In 
case  the  estate  is  not  sufficient  to  pay  all  the  debts  and 
legacies,  the  specific  legacies  do  not  abate  until  all  the 
others  are  exhausted.  Neither  can  a  specific  legatee 
look  to  any  property  other  than  that  specified  for  the 
satisfaction  of  his  legacy.' 

3.  Demonstrative  legacies,  or  those  where  a  certain 
amount  of  money  is  given  to  come  out  of  a  particular 
fund.     Such  a  legacy  does  not  fail   if  the   particular 
fund  is  changed,  nor  does  it  abate  if  the  estate  is  not 
sufficient  to  meet  all  claims.2 

4.  Lapsed  legacies,  or  those  in  which  the  legatee  dies 
before  the  testator.3 

5.  Contingent  legacies,  as  an  estate  to  A,  when  or  if 
he  attain  the  age  of  twenty-one.4 

The  Cy  Pres  doctrine  is  the  rule  of  construction  ap- 
plied to  a  will  by  which,  when  the  testator  evinces  a 
particular  and  a  general  intention,  and  the  particular 
intention  cannot  take  effect,  the  words  shall  be  so  con- 
strued as  to  give  effect  to  the  general  intention.  It  is 
principally  applied  to  sustain  bequests  for  charity. 
Where  there  is  a  definite  charitable  purpose  which 
cannot  be  effected,  the  courts  will  not  substitute 
another ;  but  if  charity  be  the  general  substantial  in- 
tention, courts  will  find  some  means  of  effectuating  it, 
though  the  method  provided  for  its  execution  fails,  even 
by  applying  the  fund  to  a  different  purpose  from  that 
contemplated  by  the  testator,  provided  only  it  be  chari- 
table. This  doctrine  is  not  universally  accepted  in  the 
United  States.5 

1  2  Redf.  Wills  *I35.  J  Id.  *I36. 

3  Id.  *is8  ;  2  Bl.  Comm.  573.  *  Id. 

5  Bisp.  Eq.  §  126  et  seq.;  2  Redf.  Wills  *357  et  seq. 


CHAPTER    XVII. 

PERSONAL   PROPERTY. 

Personal  property  comprises  all  property  not  of  a 
freehold  nature,  nor  descendible  to  the  heirs-at-law.  It 
may  be  divided  into 

1.  Chattels  real,  or  interests  annexed  to  or  concern- 
ing the  realty,  as  a  lease  for  years. 

2.  Chattels  personal,  consisting  of  tangible  and  mov- 
able property,    not  attached   to   the    realty.1     Under 
this  head  the  doctrine  of  fixtures  may  be  considered. 

Fixtures  consist  of  personal  property  which  has 
been  attached  to  the  realty,  but  which  still  retains  its 
character  as  personal  property  and  may  be  removed  by 
the  person  attaching  it  to  the  realty,  or  his  personal 
representatives.2  This  was  in  derogation  of  the  com- 
mon law,  which  regarded  all  things  attached  to  the 
realty  as  becoming  a  part  thereof.3 

In  determining  whether  an  article  is  a  fixture,  the 
manner  of  its  attachment  and  the  difficulty  of,  and  in- 
jury likely  to  be  caused  by,  its  removal,  and  particu- 
larly the  intention  of  the  parties,  are  to  be  considered.4 
The  question  as  regards  fixtures  commonly  arises  in 
five  instances. 

a.  Between  heir  and  executor,  where  the  construction 
is  in  favor  of  the  heir. 

b.  Between  the  personal  representatives  of  the  tenant 
for  life,   and  the  remainder-man  or  reversioner,  where 

1  2  Kent  Comm.  340,  341. 

1  Ferard.  Fixt.  2  ;  Schouler  Per.  Prop.  §  112.     There  is  some  con- 
fusion in  the  use  of  the  term,  however.     See  Ewell  Fixt.  i. 

3  2  Kent.  Comm.  343.  4  Tied.  R.  P.  §  3  ;  i  Wash.  R.  P.  *6. 

(82) 


PERSONAL  PROPERTY.  83 

the  construction  is  in  favor  of  the  personal  representa- 
tives. 

c.  Between  landlord  and  tenant,  where  the  construc- 
tion is  most  strongly  in  favor  of  the  tenant. 

d.  Between  vendor  and  vendee,  where  the  construc- 
tion is  in  favor  of  the  latter. 

e.  Between    mortgagor    and    mortgagee,   where   the 
construction  is  in  favor  of  the  latter.* 

The  English  rule,  that  courts  are  more  ready  to 
construe  as  fixtures  articles  used  for  purposes  of  trade 
and  manufacture  than  those  used  for  agricultural  pur- 
poses, does  not  hold  in  the  United  States.2 

Personal  property  may  also  be  divided  into 

1 .  Choses  in  possession,  and 

2.  Choses  in  action,  or   rights   not   reduced   to  pos- 
session, but  which  may  be  enforced  by  an  action  at 
law,  such  as  bonds  or  promissory  notes. 

Remainders  may  be  limited  in  all  chattels  of  a  dura- 
ble nature.  If  there  is  a  specific  bequest  of  a  chattel 
whose  use  involves  its  consumption,  as  of  hay  or  grain, 
with  remainder  over,  the  latter  is  void.  If,  however, 
the  bequest  is  general,  the  property  should  be  con- 
verted into  money  and  the  principal  reserved  for  the 
remainder-man.3 

Title  to  personal  property  may  be  acquired  in  three 
ways :  by  original  acquisition,  by  act  of  law,  by  act  of 
parties. 

i.  Title  by  original  acquisition  may  be  acquired 

(a).  By  occupancy.  This  right  is  now  confined  to 
goods  found  upon  the  surface  of  the  earth,  when  the 
finder  is  justified  in  appropriating  them- to  his  own  use, 
in  case  the  owner  cannot  be  found.4 

1  Tied.  R.  P.  §  3  ;  i  Wash.  R.  P.  *6.     See  z  Kent  Comm.  345. 
5  i  Wash.  R.  P.  *8.     For  discussion  of  cases  see  Ewell  Fixt.  no. 

3  2  Kent  Comm.  351  et  seq. 

4  Id.  357  ;  see  2  Schouler  Per.  P.  §  6  et  seq. 


04  A   REVIEW   IN   LAW   AND   EQUITY. 

(&).  By  accession,  and  confusion  of  goods.  Acces- 
sion is  the  right  to  all  which  one's  property  produces, 
and  the  right  to  that  which  is  united  to  it  by  acces- 
sion, either  naturally  or  artificially.  This  includes  the 
right  to  the  produce  of  the  soil,  the  natural  increase  of 
animals,  etc.  It  is  held  that  if  a  person  hires  animals 
for  a  certain  time,  he  is  entitled  to  the  young  born 
during  that  time,  he  being  regarded  as  the  temporary 
proprietor. 

(slf  A  by  his  labor  unites  to  his  own  property  the 
property  of  B,  he  becomes  the  owner  of  the  latter  by 
right  of  accession.  A  wilful  trespasser  cannot,  however, 
gain  a  title  to  the  property  of  another  under  this  prin- 
ciple, and  the  true  owner  can  reclaim  and  take  his 
goods  in  whatever  form  they  may  exist,  provided  he 
can  trace  and  identify  them.  If  A  should  take  logs 
belonging  to  B,  convert  them  into  boards,  and  the 
latter  into  boxes,  B  could  assert  his  property  in  the 
boxes,  provided  he  could  prove  that  they  were  made 
from  his  logs.1 

In  case  of  confusion  of  goods,  if  the  mixture  was  by 
common  consent,  the  owners  are  tenants  in  common. 

If  the  mixture  was  made  wilfully  by  one  party  alone, 
he  loses  his  right  in  the  property  unless  he  can  dis- 
tinguish it  from  that  with  which  it  was  intermingled, 
or  unless  it  was  equal  in  value  to  that  with  which  it 
was  intermingled.2 

(c).  By  intellectual  labor,  the  rights  to  the  profits  of 
which  are  protected  by  patents  and  copyrights. 

"2.  Title  by  act  of  law  may  be  acquired 

(a).  By  forfeiture,  as  for  various  crimes.  Title  by 
forfeiture  has  practically  no  existence  in  the  United 
States.  A  peculiar  instance  of  forfeiture  at  common 
law  occurred  in  the  case  of  deodands,  which  were  per- 
sonal chattels  which  were  the  immediate  occasion  of 

1  2  Kent  Comm.  361  et  seg.  *  Id.  364  ;  2  Schouler  Per.  P.  §  37. 


PERSONAL   PROPERTY.  85 

the  death  of  any  reasonable  creature,  and  which  were 
thereupon  forfeited  to  the  king.1 

(b).  By  custom.  The  most  important  illustrations  of 
a  title  thus  acquired  are  heriots,  mortuaries,  and  heir- 
looms. Heriots  are  customary  tributes  of  goods  and 
chattels,  payable  to  the  lord  upon  the  decease  of  the 
tenant.  They  were  sometimes  the  best  beast,  or  best 
piece  of  furniture,  etc.  Heriots  existed  chiefly  in  copy- 
hold estates. 

Mortuaries  were  practically  ecclesiastical  heriots,  be- 
ing a  customary  gift  claimed  by  the  minister  in  many 
parishes  upon  the  death  of  parishioners. 

Heirlooms  are  goods  and  chattels  which  by  special 
custom  go  to  the  heir  with  the  inheritance,  instead  of 
to  the  personal  representatives  of  the  deceased.8 

(c\  By  judgment.  When  a  judgment  is  recovered 
against  a  defendant  in  trespass  or  trover,  the  title  to 
the  goods,  for  the  conversion  of  which  the  action  was 
brought,  vests  in  the  defendant.3 

(d\  By  insolvency,  by  which,  according  to  the  laws 
of  the  different  States,  or  by  the  national  bankrupt  law, 
when  such  a  law  is  in  force,  the  title  to  the  goods  of 
the  insolvent  is  taken  from  him  and  vested  by  legal 
process  in  another,  who  is  to  dispose  of  the  property 
according  to  law  for  the  benefit  of  the  creditors  of  the 
insolvent.4 

(e).  By  prerogative.  This  has  no  operation  in  this 
country.  By  it,  at  common  law,  the  king  was  entitled 
to  waifs,  or  goods  thrown  away  by  a  thief  in  his  flight ; 
wrecks,  or  vessels  ashore  after  being  abandoned  by  their 
crews ;  and  estrays,  or  wandering  cattle  whose  owners 
were  unknown.' 

(/).  By    intestacy,  as    when  a  person  dies,  leaving 

1  I  Bl.  Comm.  300.  *  2  Bl.  Comm.  421  et  seq. 

3  2  Kent  Comm.  388.  *  Id.  389. 

5  i  Bl.  Comm.  290  ft  sty. 


86  A  REVIEW   IN  LAW  AND  EQUITY. 

personal  property  undisposed  of  by  will.1  Here,  by 
the  authority  of  the  proper  court,  the  title  to  such 
property  is  vested  in  an  administrator,  whose  duties 
are  defined  by  statute,  but  which  may  be  summarized 
as  follows : 

(i.)  To  make  an  inventory  of  the  estate  of  the  de- 
ceased. 

(2.)  To  collect  the  outstanding  debts,  convert  the  prop- 
erty into  money,  and  pay  the  debts  due  from  the  estate. 
The  order  in  which  debts  are  to  be  paid  is  prescribed 
by  statute.  At  common  law  the  order  was:  funeral 
charges  ;  debts  due  the  State  ;  debts  of  record,  as  judg- 
ments ;  debts  arising  from  instruments  under  seal ;  debts 
arising  from  simple  contracts. 

(3.)  To  distribute  the  estate  to  those  who  are  by  law 
entitled  to  it." 

Students  should  examine  the  statutes  on  this  point. 

Executors  are  the  persons  appointed  by  a  testator 
to  carry  out  the  directions  and  purposes  of  his  will.3 
Their  duties  correspond  to  those  of  administrator  in 
the  first  two  points,  unless  there  be  a  different  provi- 
sion in  the  will  in  regard  to  turning  the  estate  into 
money.  Their  other  duties  vary  according  to  the  will 
of  the  testator.  At  common  law,  an  executor  could 
appoint  an  executor  to  carry  out  the  provisions  of  the 
will  of  which  he  was  executor.  This  is  now  changed 
by  statute  in  most  States.  An  administrator  had  no 
such  power.4 

An  administrator  or  executor  with  will  annexed,  is 
a  person  appointed  by  the  court  to  act  as  executor  of  a 
will  when  the  testator  has  failed  to  appoint  one.' 

An  administrator  de  bonis  non  is  an  administrator  ap- 
pointed to  fulfil  the  duties  of  an  administrator  who  has 
died,  leaving  the  estate  wholly  or  partially  unsettled.' 

1  2  Kent  Comm.  409.  2  Id.  415-426.          3  I  Williams  Ex.  266. 

4  2  Bl.  Comm.  506.  5  i  Williams  Ex.  527.  *  Id. 


PERSONAL  PROPERTY.  8/ 

An  executor  de  son  tort  is  one  who,  without 
authority,  undertakes  to  act  as  executor.  He  is  liable 
for  any  injury  or  loss  which  may  occur  to  the  property 
while  he  is  so  acting.' 

An  administrator  derives  all  his  authority  from  the 
court,  while  an  executor  derives  his  authority  primarily 
from  the  will,  and  it  arises,  not  on  the  probate  of  the 
will,  but  at  the  testator's  death." 

The  descent  of  real  property  is  governed  by  the  lex 
loci  rei  sitce  (law  of  the  place  where  the  property  is  sit- 
uated). Thus,  if  A  dies  in  Boston,  leaving  real  prop- 
erty in  Chicago,  its  descent  is  regulated  by  the  laws  of 
Illinois. 

The  descent  of  personal  property  is  governed  by 
the  lex  domicilii  (law  of  the  domicile).3  By  domicile  is 
meant  a  person's  legal  residence.  Thus,  if  A,  whose 
home  is  in  Boston,  dies  in  Chicago,  leaving  personal 
property  in  New  York,  its  descent  is  regulated  by  the 
laws  of  Massachusetts. 

3.  Title  to  personal  property  arising  from  the  ACT 
OF  THE  PARTIES,  may  be  by  gift  or  by  contract. 

Gifts  are  of  two  kinds,  gifts  inter  vivos,  and  gifts 
causa  mortis. 

Gifts  inter  vivos  go  into  absolute  and  immediate 
effect.  Delivery  is  essential  to  their  validity.  Actual 
delivery  is  necessary  when  such  delivery  is  possible. 
If  the  thing  given  be  a  chose  in  action,  there  must  be 
an  assignment  unless,  as  in  the  case  of  a  promissory 
note  payable  to  bearer,  the  title  passes  by  delivery. 
A  gift  perfected  by  delivery  and  acceptance  is  irrevo- 
cable unless  it  be4 

a.  Prejudicial  to  creditors.  The  general  rule  is  that 
gifts  or  settlements  made  by  a  debtor  are  fraudulent 
and  can  be  set  aside  by  the  creditors.  Gifts  or  settle- 

1  Williams  Ex.  296  et  seq.  *  Id.  337  et  seq. 

3  2  Kent  Comm.  429  et  seq.  4  2  Kent  Comm.  440. 


88  A   REVIEW   IN   LAW   AND   EQUITY. 

ments  made  by  a  person  who  is  free  from  debt  at  the 
time,  but  who  afterwards  becomes  indebted,  are  valid, 
unless  made  with  the  intention  of  defrauding  future 
creditors.1 

b.  Unless  the  donor  was  under  some  legal  incapacity, 
as  infancy. 

c.  Unless  the  gift  was  induced   by  intimidation  or 
fraud. 

Gifts  causa  mortis  are  gifts  made  in  apprehension  of 
death.  They  are  revocable  by  the  donor  in  event  of  his 
recovery.  The  rule  in  regard  to  delivery  is  the  same  as 
in  gifts  inter  vivos.  Symbolical  delivery  may  be  good 
when  no  other  delivery  is,  under  the  circumstances, 
possible,  as  the  delivery  of  the  key  of  a  room  containing 
furniture.2  At  common  law  it  was  a  doubtful  question 
whether  bonds,  bills  of  exchange,  promissory  notes,  and 
other  choses  in  action  could  be  the  subjects  of  a  gift 
causa  mortis,  but  the  question  is  well  settled  in  the 
affirmative  in  this  country.3 

1  2  Kent.  Comm.  440. 

8  Id.  444-447  ;  2  Schouler  Per.  P.  §§  159,  162. 

3  Id.  447  ;  Id.  §  I47. 


CHAPTER    XVIII. 

CONTRACTS — GENERAL  PRINCIPLES,   PARTIES,   ETC. 

A  contract  is  an  agreement  between  two  or  more 
persons,  upon  a  sufficient  consideration,  to  do,  or  not 
to  do,  a  particular  thing.1 

Contracts  may  be  divided  into 

1.  Contracts  under  seal,  called  specialties,  and 

2.  Contracts  not  under  seal,  called  simple  contracts. 
Contracts  may  be  further  divided  into 

1 .  Parol  contracts,  or  those  made  orally,  and 

2.  Written   contracts,  or  those  expressed   and   con- 
tained in  some  writing. 

Contracts  may  also  be  divided  into 

1.  Express,  or   those  formed   by  direct  act  of  the 
parties,  and 

2.  Implied,  or  those  which  are  presumed  by  the  law 
to  exist  from   the  relations  of  the    parties.     Implied 
contracts  are  of  two  kinds,     (a)  Those  implied  in  fact. 
Thus,  if  A  orders  and  receives  goods  from  B,  nothing 
being  said  about  the  price,  the  facts  warrant  the  infer- 
ence  of  an    agreement    on    the   part   of  A  to  pay  B 
reasonable  price.     That  is,  the  conduct  of  the  parties 
proves  the  contract,  while  in   express   contracts   the 
contract  is  proved  by  their  language. 

(b\  Contracts  implied  in  law.     See  Quasi-Contracts. 
There  are  four  essentials  of  every  good  contract. 

1.  Parties  able  to  contract. 

2.  A  sufficient  consideration. 

3.  Parties  willing  to  contract. 

1  2  Bl.  Comm.  442  ;  Sturges  v.  Crowninshield,  4  Wheat.  197. 

(89) 


90  A   REVIEW   IN   LAW   AND   EQUITY. 

4.  An  actual  meeting  of  the  minds  (Assentio  men- 
tium). 

The  following  parties  are  unable  to  form  a  binding 
contract : 

(a)  Infants,  (b)  married  women,  (c)  idiots  and 
lunatics. 

•""A  distinction  is  to  be  observed  between  void  and 
voidable  contracts.  The  former  are  incapable  of  ratifi- 
cation ;  can  never  be  made  the  subject  of  an  action  at 
law. 

The  latter  are  capable  of  ratification,  and  when  so 
ratified  are  binding.  The  contracts  of  an  infant  are 
voidable.1  If  ratified  by  him  in  an  unmistakable  man- 
ner, upon  becoming  of  age,  they  are  binding.  The 
following  contracts  of  infants  are,  however,  binding. 

(i).  Contracts  for  necessaries? 

(2).  Contracts  for  necessaries  furnished  a  wife.* 

The  infant  is  not,  however,  liable  for  necessaries 
furnished  to  his  intended  wife  in  preparation  for  mar- 
riage. 

As  a  general  rule,  at  common  law,  the  contracts  of 
a  married  woman  were  void.4  If,  however,  a  separate 
estate  had  been  settled  on  her,  she  was  in  equity  re- 
garded as  a  feme  sole  with  regard  to  that,  and  con- 
tracts made  with  direct  reference  to  such  an  estate  or 
for  its  benefit  were  binding.5  A  deed  made  by  a  wife 
was  absolutely  void,  though  a  deed  made  to  a  wife  be- 
came valid  upon  ratification  by  the  husband."  The 
statutes  of  most  States  have  entirely  altered  the  com- 
mon law,  and,  with  limitations  varying  with  the  dif- 
ferent States,  marriage  does  not  affect  her  ability  to 
contract. 

The  contracts  of  idiots  are  void,  as  there  is  no  capac- 

1  Met.  Contr.  45  ;  i  Par.  Contr.  *2Q4.  a  2  Par.  Contr.  *2g6. 

3  Id.  ;  i  Chitty  Contr.  197.  4  I  Par.  Contr.  *34$. 

i     5  2  Kent  Comm.  164.  6  2  Bl.  Comm.  292. 


CONTRACTS — GENERAL  PRINCIPLES,  PARTIES,  ETC.   9 1 

ity  to  assent.  A  contract  made  during  lunacy  can  be 
ratified,  if  the  lunatic  is  restored  to  mental  sound- 
ness.1 

Parties  must  be  not  only  able,  but  WILLING  TO 
CONTRACT.  Contracts  made  under  any  form  of  illegal 
duress  are  voidable.  A  contract  made  by  a  person 
legally  imprisoned,  for  the  purpose  of  securing  his  re- 
lease, is  binding.3  Contracts  made  in  a  state  of  intoxi-  •> 
cation  such  as  to  deprive  the  person  of  the  ordinary  use 
of  his  faculties  are  voidable? 

No  contract  can  be  VALID  WITHOUT  A  SUFFICIENT 

CONSIDERATION. 

Considerations  are  of  two  kinds,  good  and  valuable. 

1.  A  valuable  consideration  is  one  that  is  a  benefit  to 
the  promisor,  or  an  injury  to  the  promisee. 

2.  A  good   consideration   is   love   or  natural  affec- 
tion.4 

In  order  to  bind  third  parties,  the  consideration 
must  be  valuable.  Contracts  with  good  considerations 
are  binding  only  as  between  the  parties.*  Marriage  is 
a  valuable  consideration, — i.  e.,  a  contract  made  in  con- 
sideration of  marriage  is  binding  as  to  third  parties.' 

In  the  case  of  contracts  under  seal,  and  of  negotiable 
instruments  in  the  hands  of  a  third  party,  the  law 
implies  a  consideration,  whether  there  be  actually  a 
consideration  or  not.  In  the  case  of  sealed  contracts, 
the  law  presumes  a  consideration  only  as  between 
parties  and  their  privies,  not  as  regards  third  parties.7 

There  must  be  an  actual  agreement  of  the  parties, 
an  actual  meeting  of  the  minds ;  otherwise  there  is  no 
contract.  In  the  case  of  contracts  made  by  mail,  the 

1  See  i  Chitty  Contr.  187  ;  i  Par.  Contr.  *383. 
*  2  Kent  Comm.  453  ;  Met.  Contr.  26  et  seq. 

3  2  Kent  Comm.  451,  454  ;  I  Chitty  Contr.  192. 

4  2  Kent  Comm.  464,  465  ;  i  Chitty  Contr.  27. 

5  i  Par.  Contr.  ^432.  6  Id.  *43i,  and  cases  cited. 
"  i  Par.  Contr.  *42?  ;  2  Kent.  Comm.  465  ;  Walker  Am.  Law  414. 


92  A  REVIEW  IN   LAW  AND  EQUITY. 

general  rule  is  that  the  assent  of  a  party  making  a 
proposition  by  letter  is  supposed  to  continue  until  the 
other  party  has  received  the  letter.1  Thus,  if  A  in 
New  York  makes  by  letter  an  offer  of  certain  goods  at 
a  certain  price  to  B,  in  San  Francisco,  A's  consent  is 
presumed  to  continue  until  the  letter  has  reached  B, 
and  if  B  accepts  and  signifies  his  acceptance  by  a 
letter,  the  contract  is  completed  upon  the  mailing  of 
the  letter.  A  subsequent  retraction  on  the  part  of  A 
would  not  affect  the  validity  of  the  contract. 

It  is  not  necessary  that  the  consideration  be  adequate 
in  value.  Any  benefit  to  the  promisor,  however  slight, 
if  of  any  legal  value,  and  any  damage,  inconvenience, 
or  loss  to  the  promisee,  are  sufficient  to  support  the 
contract.3 

An  executed  consideration  will  not  support  a  sub- 
sequent promise,  unless  the  consideration  were  exe- 
cuted at  the  request  of  the  promisor,  either  express  or 
implied.  Thus,  if  A  voluntarily,  without  any  request 
on  B's  part,  gives  to  B  one  hundred  dollars,  a  subse- 
quent promise  by  B  to  repay  A  will  be  void,  there  be- 
ing no  consideration  for  the  promise.  But  if  B  had 
asked  A  to  give  him  one  hundred  dollars,  a  subsequent 
promise  of  repayment  on  the  part  of  B  would  be  binding. 

There  are  three  cases,  however,  in  which,  in  order  to 
support  an  executed  consideration,  the  request  is 
implied,  if  it  was  not  made  expressly.3 

i.  Where  the  consideration  consists  in  the  plaintiffs 
having  been  compelled  to  do  that  to  which  the  defend- 
ant was  legally  compellable,  as  when  A,  a  surety, 
who  has  been  damnified,  brings  an  action  to  recover 
indemnity  from  his  principal  B.  Here  the  law  pre- 
sumes a  request  from  B  to  A  to  pay  the  amount,  and 
a  promise  from  B  to  reimburse  A. 

1  r  Par.  Contr.  *4%3.  *  Met.  Contr.  191. 

3  i  Chitty  Contr.  69  et  seq. 


CONTRACTS— GENERAL  PRINCIPLES,  PARTIES,  ETC.   93 

2.  Where  the  defendant  has  adopted    and  enjoyed 
the  benefit  of  the  consideration.     Thus,  if  A,  without 
the  authority  or  request  of  B,  should  make  a  wagon  for 
the  latter  and  leave  it  on  his  premises,  and  B  should 
use   the   wagon,   the   law  would   presume  both   a  re- 
quest from  B  to  A  to  build  the  wagon,  and  a  promise 
to  pay  for  it.     Upon  this  principle  depends  the  right 
of  a  publisher  to  recover  for  publications  sent  and  not 
returned  by  the  person  to  whom  they  were  sent. 

3.  When  the  plaintiff  voluntarily  does  that  to  which 
the  defendant  was  legally  compellable,  and  the  defend- 
ant   afterwards,    in    consideration    thereof,    expressly 
promises  to  reimburse  the  plaintiff,  thus  if  A  pays  a 
debt  owed  by  B,  a   promise  by  B  to   recompense  A 
would  support  an  action  against  B. 

The  FOLLOWING  FOUR  CLASSES  OF  CONTRACTS 
ARE  VOID  :  immoral,  illegal,  impolitic,  fraudulent. 

a.  Immoral  contracts   are    such  as  contravene   the 
well-established  principles  of  morality,  as  an  agreement 
in  consideration  of  future  illicit  cohabitation.' 

b.  Illegal  contracts  include  immoral  contracts  and  all 
other  contracts  which  tend  to  any  violation,  of  the  law 
of  the  land,  as  a  contract  for  the  violation  of  revenue 
laws,  or  a  promissory  note  given  for  a  gambling  con- 
sideration.11 

c.  Impolitic  contracts  are  such  as  contravene  sound 
public  policy,  as  marriage  brocage  contracts,  contracts 
in  general  restraint  of  trade ;  contracts  in  general  re- 
straint of  marriage. 

Marriage  brocage  contracts  are  agreements  to  pay 
third  persons  for  procuring  a  marriage,  through  their 
influence  with  one  of  the  parties  to  the  match.' 

Contracts  in  general  restraint  of  marriage  are  void  ; 
otherwise,  with  contracts  in  partial  restraint.  Also, 

1  Walker  Am.  Law  455  ;  2  Chitty  Contr.  979- 

3  See  2  Chitty  Contr.  971  et  seq.  3  Id-  988. 


94  A   REVIEW   IN  LAW   AND   EQUITY. 

legacies  on  condition  that  the  legatee  does  not  marry, 
are  construed  as  unconditional  legacies.1 

Contracts  in  general  restraint  of  trade,  with  no  limits 
to  the  space  or  time  within  which  the  trade  or  occupa- 
tion is  not  to  be  exercised,  are  void.  Also  any  un- 
necessary or  unreasonable  restraint,  though  with  space 
or  time  limits,  is  void.  Thus,  it  has  been  held  that  a 
contract  not  to  engage  in  the  teaching  of  French  in  the 
State  of  Rhode  Island  is  void,  in  that  a  general  pro- 
hibition was  not  essential  to  the  protection  of  the 
plaintiff,  nor  reasonable  for  him  to  ask.* 

d.  All  contracts  tainted  with  any  species  of  fraud 
are  void.  The  principles  governing  fraud  will  be 
stated  under  Equity. 

The  lex  loci  contractus  (law  of  the  place  of  the  con- 
tract) controls  the  nature,  construction,  and  validity  of 
the  contract.  As  a  rule,  contracts  valid  in  the  place 
where  they  are  made,  are  valid  everywhere?  If,  how- 
ever, a  contract  made  under  one  government  is  to  be 
performed  under  another,  and  the  parties  had  in  view 
the  laws  of  the  second  government  in  regard  to  the  ex- 
ecution of  the  contract,  the  lex  loci  solutionis  (law  of  the 
place  where  the  contract  is  to  be  executed)  prevails. 
Thus,  the  days  of  grace  allowed  upon  bills  of  exchange 
are  computed  according  to  the  law  of  the  place  in 
which  it  is  to  be  paid,  not  of  the  place  where  it  is 
drawn.* 

The  lex  fori  (law  of  the  forum,  or  of  the  place  where 
an  action  is  brought)  governs  and  controls  the  remedy 
to  be  pursued  upon  breach  of  contract.  It  has  been 
decided  that  the  statute  of  limitations  is  a  part  of  the 
lex  fori?  Thus,  if  an  action  is  brought  upon  a  con- 

1  Met.  Contr.  267  ;  i  Story  Eq.  Juris.  §  280  et  seq. 

2  2  Par.  Contr.  *748  et  seq.  ;  Herreshoff  v.  Boutineau,  17  R.  I.  3. 

3  2  Kent  Comm.  *455. 

4  Id.  *459  ;  Pomeroy  v.  Ainsworth,  22  Barb.  118. 
8  Id.  *4&2  ;  2  Par.  Contr.  *5gi. 


CONTRACTS — GENERAL  PRINCIPLES,  PARTIES,  ETC.  95 

tract,  in  a  State  where  the  period  of  the  statute  of 
limitations  operating  upon  that  species  of  contract  is 
five  years,  and  the  contract  was  made  in  a  State  where 
six  years  is  the  statutory  period  within  which  an  action 
can  be  brought,  the  law  of  the  first  State  controls  in 
this  respect. 

I/ 


CHAPTER    XIX. 

SALES. 

I.  A  sale  is  a  contract  for  the  transfer  of  property 
from  one  person  to  another  in  consideration  of  some 
price,  or  recompense  in  value.  When  goods  are  given 
in  exchange  for  goods,  the  transaction  is  called  barter.1 

There  are  three  points  to  be  considered  in  every 
sale — the  thing  sold,  the  price,  the  consent  of  the  con- 
tracting parties.3 

1.  The  thing  sold  must  have  an  actual  or  possible  ex- 
istence,   be  specific,  or    identified,  and  capable   of  de- 
livery.    If  A  sells  a  house  to  B,  and  at  the  time  of  the 
sale   the   house    had   been   burned,    unknown    to    the 
parties,  the  sale  is  void,  provided  the  house  and  n,ot 
the   land  was   the    inducement    to    the   contract.     In 
case  the  vendor  is  unable  to  give  a  good  title  to  the 
whole  of  the    property    sold,    whether    it    be  land  or 
chattels,    the   rule  is,  that  if  the  defect  of  title  is  so 
great  as  to  render  the  thing  sold   unfit  for  the  use  in- 
tended and  not  within  the  inducement  to  the  purchase, 
the  purchaser  is  not  held  to  the  contract,  but  is  at  lib- 
erty to  rescind  it.3 

2.  The  PRICE  must  be  real,  and  not  merely  nominal, 
and  must  be  fixed,  or  capable  of  being  ascertained  by 
the  method  prescribed  in  the  contract.4 

3.  For  mutual  consent  see  page  91. 

1  2  Bl.  Comm.  446  ;  Benj.  Sales  §  2. 

a  2  Kent  Comm.  468  ;  see  Benj.  Sales  §  I. 

3  2  Kent  Comm.  468,  475. 

4  Id.  476  ;  see  Benj.  Sales  §§  85  et  seq. 

(96) 


SALES. 


97 


Warranties  are  of  two  kinds,  express  and  implied. 
The  only  implied  warranties  which  are  generally  ac- 
cepted as  such  are  those  of  title,  that  when  a  sale  is 
made  by  sample  the  bulk  of  the  goods  corresponds  in 
quality  to  that  of  the  sample,  and  that  when  goods  are 
ordered  by  description  they  should  correspond  to  the 
description  of  the  goods  ordered.  The  mere  expres- 
sion of  judgment  or  opinion  does  not  amount  to  a 
warranty.1 

Defects  are  of  two  kinds,  latent  and  patent.  A 
latent  defect  is  one  which  is  not  evident  upon  exami- 
nation, and  which  only  the  use  of  and  experience  with 
the  article  can  bring  to  light. 

A  patent  defect  is  one  that  is  apparent  upon  exami- 
nation. The  maxim  caveat  emptor  (let  the  purchaser 
beware  or  be  on  his  guard)  applies  to  patent  defects, 
and  to  such  latent  deTects  as  are  mutually  unknown,  but 
not  to  defects  known  to  the  vendor  only.  These  must 
be  made  known  by  the  vendor  to  the  vendee.2 

In  case  of  a  breach  of  warranty  the  vendee  has  two 
remedies.  He  may  return  the  property  and  sue  to  re- 
cover the  purchase-money,  or  he  may  keep  the  prop- 
erty and  sue  to  recover  the  difference  between  the 
actual  value  of  the  property  and  the  purchase-money.' 

An  action  lies  by  the  vendee  against  a  third  party, 
who,  by  false  representations  in  regard  to  the  thing  sold, 
has  induced  the  vendee  to  buy.  Also,  an  action  lies  by 
the  vendor  against  a  third  party  who  has  induced  him 
to  give  credit  to  the  vendee  by  false  representations, 
resulting  in  loss  to  the  vendor.4 

Delivery. — When    the   bargain    is    completed    and 

1  z  Kent  Comm.  478  etseq.  486  ;  Benj.  Sales  §§  600,  627,  645,  648. 

s  Id.  482  et  seq.;  Id.  §§  611,  616.  So  far  as  the  writer  knows,  the 
rule  of  caveat  emptor  has  not  been  formulated  in  precisely  this 
language,  but  it  is  believed  to  be  deducible  from  the  authorities, 
including  others  than  those  cited. 

3  2  Kent  Comm.  480.  4  Id.  488  ei  seq. 


98  A   REVIEW   IN    LAW   AND   EQUITY. 

everything  that  the  vendor  has  to  do  with  the  goods 
has  been  done,  the  contract  of  sale  becomes  absolute 
and  delivery  is  not  necessary  as  between  the  parties,  to 
pass  the  title.1 

The  vendee  is  entitled  to  the  goods  upon  payment 
of  the  price.  If  sold  upon  credit,  he  is  entitled  to 
them  at  once.  When  actual  delivery  is  impossible,  as 
in  the  case  of  logs  in  a  river,  symbolical  delivery  is  suf- 
ficient. Delivery  of  goods  to  or  by  an  agent  is  equiva- 
lent to  delivery  to  or  by  a  principal.* 

Place  of  delivery. — If  no  place  of  delivery  is  speci- 
fied in  the  contract,  the  goods  are  to  be  delivered 
where  they  are  at  the  time  of  the  sale.3 

The  statute  of  frauds,  designed  for  the  prevention 
of  frauds  and  perjury,  was  passed  in  29  Chas.  II. 
(1677).  It  enumerates  certain  classes  of  contracts, 
which  must  be  in  writing,  in  order  to  be  made  the  sub- 
ject of  an  action,  and  Sec.  17,  Chap.  III.,  which  has 
been  substantially  adopted  in  this  country,  provides 
that  no  contract  for  the  sale  of  goods  for  the  price  of 
ten  pounds  or  upwards  shall  be  good  unless  the  buyer 
shall  accept  part  of  the  goods  so  sold  and  actually  re- 
ceive the  same,  or  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  payment,  or  unless  some  note  or 
memorandum  in  writing  of  the  bargain  be  made  and 
signed  by  the  parties  to  be  charged,  or  their  agents 
thereunto  lawfully  authorized. 

The  statute  of  frauds  as  existing  in  the  State  where 
the  student  is  examined,  should  be  carefully  learned  by 
him,  and  an  examination  of  the  leading  decisions  under 
each  section  made. 

The  statements  made  in  the  section  quoted  in  regard 
to  delivery  apply  to  the  delivery  essential  to  take  a  con- 

1  2  Bl.  Comm.  448  ;  2  Kent  Comm.  492. 

*  Id.  492,  493,  499,  500  ;  Benj.  Sales  §§  677,  696. 

3  2  Kent  Comm.  505,  and  cases  cited. 


SALES.  c,9 

tract  out  of  the  statute  of  frauds.  A  partial  delivery  is 
sufficient  for  this  purpose.1  The  payment  of  earnest 
money  does  not  entitle  the  vendee  to  possession ;  it 
merely  takes  the  contract  out  of  the  statute.2 

The  property  does  not  pass  to  the  vendee  until  the 
articles  have  been  separated  from  the  common  stock, 
and  are  ready  for  delivery.3  Thus,  if  A  buys  of  B  a 
certain  amount  of  cloth,  and  pays  for  it,  and  before  the 
cloth  has  been  set  apart  or  cut  from  the  rest,  the 
whole  is  destroyed,  the  loss  falls  on  B,  and  A  can  re- 
cover the  amount  paid  to  B.  The  contrary  would  be 
true  if  the  cloth  had  been  separated  from  the  mass  and 
prepared  for  delivery. 

FRAUD  AS  AFFECTING  SALES. 

As  a  rule,  all  contracts  tainted  with  fraud  can  be  set 
aside.  In  all  cases  of  sales  the  contract  must  be  bona 
fide,  and  upon  a  valuable  consideration.  In  case  a 
vendee  procures  goods  with  no  intention  of  paying 
therefor,  the  vendor  can  treat  the  sale  as  void  and  re- 
plevy  the  goods.4 

In  the  case  of  a  sale  accompanied  by  an  agreement 
that  the  vendor  shall  remain  in  possession  of  the  thing 
sold,  two  rules  exist. 

i.  That  such  retention  of  possession  gives  rise  to  a 
conclusive  presumption  of  fraud. 

•2.  That  while  such  retention  is  evidence  of  fraud,  it 
is  not  conclusive  evidence,  but  is  capable  of  being  re- 
butted.4 

Stoppage  in  transitu  is  the  right  which  the  vendor, 
who  sells  goods  on  credit,  has  to  resume  the  pos- 

1  Mills  v.  Hunt.  20  Wend.  431.  J  2  Kent  Comm.  496. 

3  Id.     For  review  and  classification  of  cases,  see  Benj.  Sales  §  334, 
note,  4th  Am.  Ed. 

4  Benj.  Sales  §  428  ;  2  Kent  Comm.   512  ;  Benj.  Sales  §  440,  note, 
4th  Am.  Ed.  :  Id.  for  effect  of  insolvency. 

5  See  2  Kent  Comm.  515  et  seq. 


100  A   REVIEW   IN   LAW   AND   EQUITY. 

session  of  the  goods  while  in  the  hands  of  a  middle- 
man or  carrier,  in  transit  to  the  vendee,  on  the  latter's 
becoming  insolvent. 

The  exercise  of  this  right  does  not  rescind  the  con- 
tract, and  the  assignee  of  the  vendee  is  entitled  to  re- 
ceive the  goods  from  the  vendor,  on  tender  of  the 
price.1 

The  vendor  can  assert  this  right  as  against  any  gen- 
eral lien  that  the  middle-man  may  have  against  the 
vendee,  but  not  as  against  the  special  lien  which  he  has 
for  carrying  the  particular  thing  in  question.2 

The  right  can  be  defeated  in  two  ways. 

a.  By  delivery  to  the  vendee  or  his  agent ;  but  the 
goods  must  have  arrived   at  their  actual  destination. 
The  test  is  whether  the  goods  have  arrived  at  a  place 
where  they  are  under  the  direction  and   control  of  the 
vendee  or  his  agents.3 

b.  By  the  vendor's  having  given  to  the  vendee  instru- 
ments sufficient  to  transfer  title  to  the  property,  as  bills 
of  lading,  if  the  vendee,  on  the  strength  of  these  docu- 
ments, sells  the  property.4     Thus,  A  ships  goods  to  B, 
and  sends  the  bill  of  lading  by  mail,  B  indorses  it  to  C, 
who  purchases  the  goods  in  good  faith.     A's  right  of 
stoppage  in  transitu  is  gone  as  against  C. 

1  2  Kent  Comm.  542.  2  Id.  ;  3  Par.  Contr.  *242. 

3  Id.  544  et  seq.  ;  I  Par.  Contr.  *6oi  et  seq.          *  Id.  548  ;  Id.  *6o6. 


CHAPTER    XX. 

BAILMENTS. 

Bailment  is  a  delivery  of  goods  in  trust,  upon  a  con- 
tract, express  or  implied,  that  the  trust  shall  be  duly 
executed  and  the  goods  restored  by  the  bailee,  as  soon 
as  the  purpose  of  the  bailment  shall  have  been  an- 
swered.1 

There  are  five  kinds  of  bailment :  depositum,  man- 
datum,  commodatum,  pignus,  locatio. 

I.  Depositum  is  a  bailment  of  goods  to  be  kept  by 
the  bailee  for  the  bailor,  and  restored  on  demand, 
without  recompense?  The  consideration  is  the  disad- 
vantage to  the  bailor  arising  from  being  out  of  posses- 
sion of  his  property.3  The  bailee  is  to  keep  the  goods 
with  reasonable  care,  and  is  liable  only  {Q*  gross  neglect, 
or  the  want  of  care  which  every  sensible  man,  under 
the  circumstances,  would  take  of  his  own  property.4 

There  are  three  cases  in  which  the  responsibility  of 
the  bailee  is  increased,  and  he  is  liable  for  ordinary 
neglect? 

1.  When   he   specially  promises  to  keep  the  goods 
safely. 

2.  When  he  voluntarily  and  without  request,  volun- 
teers to  keep  the  goods  of  another. 

3.  When  the  bailee  receives  compensation.     This  is 
not  strictly  an  instance  of  deposit,  but  it  differs  only  in 

1  2  Bl.  Comm.  451  ;  Trunick  v.  Smith,  63  Pa.  St.  18,  23. 
8  2  Kent  Comm.  559  ;  Story  Bailm.  §  4. 

3  2  Par.  Contr.  *gg  et  seg. 

4  Story  Bailm.  §§  62,  64  ;  2  Kent  Comm.  559.  8  Id.  565. 


102  A  REVIEW   IN   LAW  AND   EQUITY. 

the   nature   of   the   consideration.     The   ordinary   in- 
stance is  that  of  warehousemen. 

II.  Mandatum    is    when  one    undertakes,   without 
recompense,  to  do  some  act  for  another  in  respect  to 
the  thing  bailed.1     Where  one  merely  undertakes  to 
carry  an  article  from  one  place  to  another,  he  is  liable 
only  for  gross  neglect.     When,  however,  he  undertakes 
to  do  some  work  relating  to  it,  he  must  use  a  degree  of 
care  suitable  to  the  work,  and  adequate  to  its  perform- 
ance.2    The  mandatary  is  not  liable  for  non-feasance, 
that  is,  for  a  total  omission  to  do  the  promised  act  in 
regard  to   the  thing   bailed ;  but  when  once   he  has 
started  to  do  it,  he  is  liable  for  misfeasance,  that  is,  the 
improper  doing  of  the  thing  promised  to  be  done.3 

III.  Commodatum  is  the  bailment  or  loan  of  an  article 
for  a  certain  time,  to  be  used  by  the  borrower  without 
paying  for  its  use.4     Here,  the  bailee  is  held  to  the 
highest  degree  of  care,  and   is  liable  for  slight  negli- 
gence.' 

The  ordinary  expenses  attendant  on  the  thing  must 
be  borne  by  the  borrower ;  the  extraordinary  expenses, 
or  those  arising  from  the  inherent  defects  of  the  thing, 
by  the  lender.6 

IV.  Pignus,  or  PLEDGE,  is  the  bailment,  or  delivery  of 
goods  by  debtor  to  creditor,  to  be  kept  till  the  debt  is 
discharged.7     In    this   case   the   debtor   is   called   the 
pawnor  and  the  creditor  the  pawnee.     The  pawnee  is 
bound  to  take  ordinary  care  of  the  thing  pawned,  and 
is  liable  for  ordinary  neglect.8     In  case  any  profit  arises 
to  the  pawnee,  while  in  possession    of  the  pawn,   he 
must  account  for  the  same  to  the  pawnor.' 

1  See  Story  Bailm.  §  137  ;  Jones  on  Bailm.  117. 

2  2  Kent  Comm.  569  ;  Coggs  v.  Bernard,  2  Ld.  Raym.  909. 

3  Id.  ;  Story  Bailm.  §  165. 

4  Jones  Bailm.  118,  217  ;  2  Kent.  Comm.  573. 

5  Story  Bailm.  §  237.  6  2  Kent  Comm.  577. 

1  Jones  Bailm.  117.  8  Story  Bailm.  §  332.  '  Id.  §  343. 


BAILMENTS.  103 

If  the  pawn  is  not  redeemed  at  the  specified  time, 
the  pawnee  can  pursue  one  of  three  courses. 

1.  He  can  proceed  directly  against  the  pawnor,  with- 
out looking  to  the  pawn. 

2.  He  can  bring  a  bill  in  equity  and  secure  a  sale  of 
the  property  by  order  of  court. 

3.  He  can  proceed  to  sell  the  property  himself  upon 
giving  due  notice  to  the  pawnor.1 

A  pledge  differs  from  a  mortgage  of  personal  prop- 
erty in  two  particulars. 

1.  The  pawnee  has  only  a  special  property  in  the 
thing    pawned,    the    general    property    being  in   the 
pawnor;  while  the  mortgagee  has  the  general  property, 
the  mortgagor  having  merely  a  right  to  redeem. 

2.  The  pawnee  has  possession  of  the  pledge;  other- 
wise with  the  mortgagee.2 

V.  Locatio  (letting)  is  a  contract  by  which  the  use 
of  a  thing,  or  labor  or  services  about  it,  are  stipulated 
to  be  given  for  a  reasonable  compensation,  express  or 
implied.  This  bailment  is  of  three  kinds." 

A.  Locatio  rei  (letting  of  the  thing),  by  which  the 
hirer,  for  a  compensation,  gains  the  temporary  use  of 
the  thing.     The  hirer  is  bound  to  use  ordinary  care, 
and  is  liable  for  ordinary   neglect.     He  has  a  special 
property  in  the  thing  hired.     In  case  of  loss  or  injury, 
the  bailor  must  prove  want  of  due  care  on  the  part  of 
the  bailee.4     The  bailee  can  use  the  property  only  for 
the  purpose  for  which  it  was  hired?     Thus,  if  A  hires 
a  horse  with  which  to  go  to  B,  and  he  goes  to  C  in- 
stead, he  is  liable  in  trover  for  conversion,  and  for  any 
damage  arising  from  going  to  C. 

B.  Locatio  operis  faciendi  (letting  of  work  to  be  done) 
is  where  work  and  labor  are  to  be  bestowed  on  the 

1  2  Kent  Comm.  582.  *  Story  Bailm.  §  287. 

3  2  Kent  Comm.  586.  *  Id.  587  ;  Story  Bailm.  §§  405,  410. 

6  Id.  §413- 


IO4  A   REVIEW   IN   LAW   AND   EQUITY. 

thing  delivered  for  a  pecuniary  recompense.  The 
bailee  is  liable  for  ordinary  neglect,  and  must  apply  a 
degree  of  skill  suitable  to  his  undertaking.1 

In  the  case  of  an  inn-keeper  (treated  by  Mr.  Story 
under  Locatio  custodies),  the  liability  is  greater  than  in 
the  case  of  other  bailees  of  this  class.  He  is  held  to 
the  highest  degree  of  responsibility.  He  is  an  insurer 
of  the  goods  of  his  guest,  and  he  can  only  limit  his  lia- 
bility by  express  agreement  or  notice.  Whether  the 
notice  is  a  reasonable  and  valid  one  is  to  be  determined 
by  the  courts.  Thus,  it  is  held  that  the  ordinary  regu- 
lation requiring  guests  to  deposit  valuables  in  the  hotel 
safe  is  a  reasonable  one,  and  guests  suffering  loss  from  a 
neglect  to  do  so,  have  no  remedy  against  the  inn-keeper.8 

This  high  degree  of  liability  attaches  to  an  inn- 
keeper only,  not  to  a  lodging  or  boarding-house  keeper. 
In  the  latter  instances,  the  landlord  makes  a  separate 
contract  with  each  guest,  while  an  inn  is  a  house,  the 
owner  of  which  holds  out  that  he  will  receive  all 
travellers  who  are  willing  to  pay  a  price  adequate  to 
the  sort  of  entertainment  provided,  and  who  come  in  a 
situation  in  which  they  are  fit  to  be  received.3 

The  local  statutes  should  be  consulted  by  the 
student  on  this  subject. 

C.  Locatio  operis  faciendi  mercium  vehendarum  (the 
letting  of  the  work  of  carrying  goods)  is  a  bailment  by 
which  one  person  undertakes  to  carry  goods  from  one 
place  to  another  for  a  pecuniary  recompense.  The 
contract  has  special  relation  to  common  carriers. 

A  common  carrier  is  one  who  undertakes  for  hire 
to  transport  the  goods  of  such  as  choose  to  employ 
him  from  place  to  place/  The  liability  is  of  the  high- 

1  Story  Bailm.  §§  429,  431. 

2  See  2   Par.  Contr.  *I46,  *I49,  note,  and  cases  cited,  8th  Ed.;  2 
Kent  Comm.  594. 

3  2  Par.  Contr.  *isi.  4  Dwight  v.  Brewster,  i  Pick.  50. 


BAILMENTS.  IO5 

est  order.  Common  carriers  are  responsible  for  all  in- 
juries to,  or  losses  of  goods,  except  those  arising  from 
the  act  of  God,  or  the  public  enemy.  By  the  act  of 
God  is  meant  any  agency  operating  without  the  aid  or 
interference  of  man.1  By  the  public  enemy  is  meant 
those  persons  with  whom  the  State  or  Nation  is  at  war.* 
The  term  does  not  include  a  mob ;  therefore  common 
carriers  are  liable  for  injuries  to  property  which  they 
hold  as  common  carriers,  arising  from  such  a  source. 

The  liability  of  a  common  carrier  BEGINS  when  the 
goods  come  into  his  custody,  as  by  delivery  at  the 
freight-house  of  a  railroad.3 

There  are  TWO  RULES  which  have  been  adopted  by 
the  courts  TO  DETERMINE  WHEN  THE  LIABILITY  as  a 
common  carrier  ENDS : 

1.  It  is  held  to  end  when  the  goods  have  reached  their 
destination   and  transportation  has    ceased.     Thus,    if 
goods  are  shipped  from  the  city  of  A  to  the  city  of  B, 
the  liability  as  common  carrier  ends  when  they  reach 
B,  and  are  stored  in  the  freight-house,  or  a  reasonably 
safe  place.4 

2.  The  liability  as  common   carrier   continues   not 
only  until    the  goods  have  reached  their  destination, 
but  until  the  consignee  has  had  a  reasonable  time  in 
which  to  remove  them,5  and  there  is  some  authority  for 
holding  that  the  carrier  is  bound  to  give  notice  to  the 
consignee   of  their  arrival.'     If  the  goods  are  not  re- 

1  2  Par.  Contr.  *i5g,  *i6o. 

2  Id.  *i63.  3  Id.  *i?6. 

4  Rice  v.  Railroad  Co.,  98  Mass.  212  ;  Bausemer  z/.  Railroad  Co., 
25  Md.  434  ;  Richards  v.  Railroad  Co.,  20  Hi.  404. 

5  Moses  v.  Railroad  Co.,  32   N.  H.   523  ;  Mills  v.  Railroad  Co.,  45 
N.  Y.  622. 

6  Herman  v.  Goodrich,  21  Wis.  536  ;  McDonald  v.  Railroad  Co.,  34 
N.  Y.  497.     Such  is  apparently  the  English  rule.     Mitchell  v.  Rail- 
road Co.,   10  L.   R.  Q.  B.  256;  Railroad  Co.  v.  Swaffield,  9   L.   R. 
Ex.  132. 


IO6  A   REVIEW   IN   LAW   AND   EQUITY. 

moved  within  a  reasonable  time,  the  carrier's  liability 
becomes  merely  that  of  a  warehouseman? 

Liens. — The  common  carrier  has  a  lien  on  the  goods 
for  his  freight.  A  lien  is  the  right  to  retain  possession 
of  personal  property  for  the  satisfaction  of  some  charge 
in  relation  thereto.2  Liens  are  of  two  kinds,  general 
and  special. 

They  arise  in  three  ways : 3 

1 .  By  express  contract. 

2.  By  general  course  of  dealing. 

3.  From  the  particular  circumstances  of  the  dealing 
between  parties. 

A  general  lien  is  one  which  can  be  enforced  on  goods 
in  possession  for  the  satisfaction  of  the  balance  of  an 
account. 

A  special  lien  is  one  which  can  be  enforced  on  goods 
in  possession  only  for  charges  in  relation  to  those  par  • 
ticular  goods.  Special  liens  are  favored,  general  liens 
not.4  A  common  carrier  has  a  special  lien  and  can 
probably  create  a- general  lien  by  express  contract.5 

Liability  of  the  carrier  beyond  his  own  route.— 
The  general  rule  is,  that  no  responsibility  as  a  carrier 
is  cast  upon  the  carrier  beyond  his  own  route,  unless 
the  usage  of  business,  or  of  the  carrier,  or  his  conduct 
or  language,  shows  that  he  takes  the  parcel  as  carrier  for 
the  whole  route.  The  receipt  of  payment  for  the 
whole  route,  is  strong  evidence  of  such  an  undertaking.' 

Common  carriers  of  passengers. — The  common 
carrier  is  liable  for  injuries  to  passengers  arising  from 
the  slightest  negligence  on  its  part.7  As  a  rule,  con- 
tributory negligence  on  the  part  of  the  passenger  re- 
leases the  carrier  from  liability.8  As  in  the  case  of 

1  z  Par.  Contr.  *iQ7.  2  Bouv.  Law  Diet.  sub.  Lien. 

3  2  Kent  Comm.  634.  4  Id. 

5  Rorer,  Railroads,  1311  ;  Jones,  Liens  §  265. 

6  2  Par.  Contr.  *2i$.  '  Id.  219. 
9  Marble  v.  Ross,  124  Mass.  44. 


BAILMENTS. 

goods,  so  in  that  of  passengers,  the  common  carrier  is 
bound  to  receive  all  who  in  a  suitable  condition  offer 
themselves.  The  carrier's  liability  to  a  passenger  be- 
gins when  the  latter  enters  the  premises  of  the  carrier 
with  the  intention  of  taking  passage,  and  ceases  when 
he  has  left  the  premises  at  the  end  of  the  journey.1 

The  carrier  is  liable  for  injury  to  baggage,  as  in  the 
case  of  other  goods,  provided  the  baggage  consists  of 
such  things  as  are  essential  to  the  personal  needs  of  the 
passenger.  The  fare  paid  by  the  passenger  includes 
payment  for  the  transportation  of  personal  necessaries 
as  baggage.  Whether  an  article  may  properly  be  car- 
ried as  baggage  is  a  question  of  fact,  to  be  determined 
by  the  circumstances  of  each  case. 

When  baggage  reaches  its  destination,  the  rules 
governing  the  carrier's  liability  are  identical  with  those 
prevailing  in  the  case  of  other  goods.2 

Regulation  of  common-law  liability  by  contract  or 
notice. — The  carrier  can  by  contract,  or  by  notice 
equivalent  to  contract,  exempt  himself  from  any  lia- 
bility for  damage  not  caused  by  his  own  negligence  or 
default. 

The  carrier  cannot  by  contract,  or  notice  equivalent 
thereto,  protect  himself  from  liability  for  the  conse- 
quences of  a  wilful  default  or  tort. 

The  weight  of  authority  is  against  the  proposition 
that  the  carrier  can  exempt  himself  from  all  liability 
for  the  consequences  of  his  own  negligence.3 

1  -2  Wood,  Railroads,  1205,  1218. 

2  2  Par.  Contr.  *igg  ;  Schouler  Bailm.  §§  667,  672,  692. 

3  2  Par.  Contr.  *25o. 


CHAPTER  XXI. 

AGENCY — GENERAL  CLASSES  OF  AGENTS. 

Agency  is  founded  upon  a  contract  either  express  or 
implied,  by  which  one  of  the  parties  confides  to  the 
other  the  management  of  some  business,  and  by  which 
the  other  assumes  to  do  the  business.1 

Agents  are  of  two  general  kinds  : 

General  agents  and  special  agents, 

1.  A  general  agent  is  one  empowered  to  transact  all 
the  business  of  his  principal  of  a  particular  kind. 

2.  A   special   agent   is  one  empowered  to  do  only 
some  particular  act  for  his  principal.2     As  a  rule,  the 
acts  of  an  agent  bind  the  principal  when  done  within  the 
scope  of  his  authority.     The  acts  of  a  general  agent;  will 
bind  the  principal  if  they  are  within  the  general  scope  of 
the  authority  of  agents  of  that  class,  though  they  may 
be  contrary  to  the  express  instructions  of  the  principal. 
The  general  agent  derives   his  power  both  from  his 
principal  and  from  the  usage  which  invests  agents  of  his 
class   with    certain    powers.     A  special  agent,  on  the 
contrary,  derives  all  his  power  from  his  principal,  and 
any  act  done  contrary  to  the  instructions  of  his  princi- 
pal is    voidable  as  regards  the  principal.     The  person 
dealing  with  a  special  agent  must  look  to  his  authority 
as  delegated  by  the  principal ;  otherwise,  he  acts  at  his 
peril.3 

Thus,  if  A  sends  flour  to  B,  a  flour  factor,  with  in- 
structions to  sell  at  $6.00  a  barrel,  and  he  sells  at 

1  2  Kent  Comm.  614.  *  I  Par.  Contr.  *4i. 

3  2  Kent  Comm.  *b2oet  seq.  ;  I  Par.  Contr.  *42. 
(108) 


AGENCY — GENERAL  CLASSES  OF  AGENTS.        109 

$5.00;  this  sale  binds  A,  because  it  is  within  the  gen- 
eral scope  of  a  factor's  authority  to  sell  the  goods  sent 
by  a  principal.  But  if  A  sends  flour  to  B,  a  horse- 
dealer,  with  instructions  to  sell  at  $6.00,  and  he  sells 
at  $5.00,  the  sale  is  voidable,  because,  being  a  special 
agent  for  the  sale  of  the  flour,  he  derives  all  his  power 
from  the  instructions  of  his  principal,  and  any  act  con- 
trary to  them  is  voidable  by  the  latter.  The  purchaser 
in  this  case  must  ask  for  evidence  of  the  agent's  au- 
thority to  sell  at  the  proposed  price,  if  he  wishes  to 
act  with  security.  Neither  class  of  agents  ordinarily 
has  power  to  appoint  sub-agents.1 

How  created. — The  contract  of  agency  may  be 
created  in  three  ways:  by parol,  by  writing,  by  implica- 
tion from  the  acts  and  relations  of  the  parties.  Au- 
thority to  make  an  instrument  under  seal  must,  how- 
ever, be  itself  given  by  an  instrument  under  seal.2  An 
act  of  the  agent,  though  in  excess  of  his  authority,  may 
be  ratified  by  the  principal,  and  it  is  then  as  binding 
as  though  made  originally  with  authority. 

When  agent  is  personally  liable. — When  the  agent 
acts  within  the  scope  of  his  authority  his  acts  bind  the 
principal,  and  no  liability  is  incurred  by  the  agent.  The 
agent,  however,  becomes  personally  liable  in  four  cases.3 

i.  When  the  principal  is  unknown,  or  the  agent  holds 
himself  out  as  the  principal.  In  this  case,  the  real 
principal  can  take  advantage  of  the  acts  of  his  agent, 
and  can  call  upon  the  third  party  to  carry  out  con- 
tracts made  with  the  agent  on  the  supposition  that  he 
was  the  principal.  In  a  suit  brought  by  an  undis- 
closed principal  against  a  third  party,  the  latter  can  set 
offzny  claim  which  he  may  have  against  the  agent  with 
whom  he  dealt,  supposing  him  to  be  the  principal.4 

1  i  Par.  Contr.  *86  ;  2  Kent  Comm.  633.  *  Id.  614,  615. 

3  2  Kent.  Comm.  629  et  seq.  ;  i  Par.  Contr.  *&4  tt  seq. 

4  2  Kent  Comm.  633. 


IIO  A   REVIEW   IN   LAW   AND   EQUITY. 

2.  When  there  is  no  responsible  principal. 

3.  When  the  agent  makes  an  undertaking  in  his  own 
name,  as  if  A,  an  agent,  should  make  a  note  reading 
"  I  promise  to  pay  "  and  should  sign  it  A,  agent  for  B. 

4.  When  the  agent  exceeds  his  powers. 

There  is  a  distinction  between  public  and  private 
agents  on  the  point  of  personal  responsibility.  If  an 
agent,  on  behalf  of  the  government,  makes  a  contract 
and  binds  himself  as  such,  he  is  not  personally  bound, 
though  the  terms  of  the  contract  be  such  as  would  bind 
him  if  acting  as  a  private  agent.1 

Agency,  how  terminated. — Agency  may  be  termi- 
nated in  six  ways.8 

1.  By  the  death  of  the  agent. 

2.  By  the  death  of  the  principal. 

3.  By  the  limitation  of  the  agency  to  a  particular  time. 

4.  By  the  completion  of  the  business  for  which  the 
agent  was  appointed. 

5.  By  revocation  of  the  power  by  the  principal.     The 
principal  can  do  this  whenever  he  wishes,  except  in  the 
case  of  an  agency  coupled  with  an  interest  in  the  busi- 
ness of  the  agency.3 

6.  By  a  change  in  the  state  or  condition  of  the  prin- 
cipal, as  by  insolvency. 

Classes  of  general  agents.  There  are  four  chief  classes 
of  general  agents :  attorneys,  auctioneers,  brokers,  and 
factors. 

i.  Attorneys  have  a  general  lien  upon  the  papers  of 
their  clients,  and  a  special  lien  on  the  funds  recovered 
in  any  particular  case4.  They  have  no  power  to  settle 
claims  except  by  the  express  authority  of  their 
clients.5 

For  relations  between  attorney  and  client,  see  Equity. 

1  2  Kent  Comm.  633.  *  Id.  643  et  seq. 

3  I  Par.  Contr.  *6g.  4  2  Kent  Comm.  640,  641. 

5  Mechem  Agen.  §  813,  and  cases  cited. 


AGENCY— GENERAL  CLASSES  OF  AGENTS.        Ill 

2.  An  auctioneer  in  possession  of  goods  has  an  inter- 
est coupled  with  the  possession.     He  has  a  special  prop- 
erty in  the  goods,  and  a  special  lien  on  them  for  the 
charges   of  the  sak   and   his  commission.     The  auc- 
tioneer is  the  agent  of  both  buyer  and  seller,  and  his 
memorandum  of  sale  is  sufficient  to  take  a  sale  out  of 
the  statute  of  frauds.     The  contract  is  completed  when 
the  hammer  falls,  this  act  of  the  auctioneer  as  agent 
of  both  parties  completing  it.1 

The  general  rule  in  regard  to  puffers,  or  persons  em- 
ployed by  the  vendor  to  enhance  the  price  of  goods 
sold  at  auction,  is  that  the  employment  of  such  bidders 
voids  the  sale.  The  proper  method  is  to  announce,  be- 
fore the  opening  of  the  sale,  the  minimum  price  which 
will  be  accepted.2 

3.  Brokers  are  persons  employed  to  make  bargains 
between  their  principals  and  third  parties.     When  a 
bargain  is  concluded  it  is  customary  for  the  broker  to 
give  the  vendee  a  "  bought  note,"  or  a  brief  statement 
of  the  property  sold,  price,  etc.,  and  to  the  vendor  a 
"  sold  note  "  containing  substantially  the  same  matter 
as  the  "bought  note."     If  these  notes  agree  they  form 
indisputable  evidence  of  the  contract.     If  they  conflict, 
parol  evidence  can  be  introduced  to  show  the  real  con- 
tract.3 

4.  Factors.  —  The    terms    broker    and    factor   are 
often  used  synonymously,  but  a  factor  differs  from  a 
broker  in  two  respects. 

a.  He  has  the  goods  of  his  principal  actually  in  his 
possession  ;  the  broker  does  not. 

b.  As  a  result  the  factor  has  a  general  lien  on  the 
goods  as  being  in  his  possession.4     A  factor  can  do  all 

1  2  Kent  Comm.  537,  540 ;  Mechem  Agen.   §  893. 

2  2  Kent  Comm.  538;  i  Par.  Contr.  *4g6. 

3  I  Par.  Contr.  *54i,  *542. 

4  I  Par.  Contr.  *gi,  *gg.     See  Mechem  Agen.  §  927,  g86a. 


112  A   REVIEW   IN   LAW   AND   EQUITY. 

such  acts  in  regard  to  the  goods  in  his  possession  as  are 
sanctioned  by  the  general  usages  of  trade.  He  can  sell 
on  credit,  if  such  be  the  usage.  He  cannot,  however, 
pledge  the  goods  as  security  for  his  own  debt,  and  any 
attempt  to  do  so  is  null  and  void.1  This  rule  is  altered 
by  statute  in  many  States. 

A  factor  acting  under  a  del  credere  commission  is  one 
who,  for  an  additional  premium  or  commission,  becomes 
liable  to  his  principal  when,  in  a  sale  on  credit,  the  pur- 
chase-money becomes  due.  It  is  an  original  contract 
and  is  not  within  the  statute  of  frauds.  Under  this 
contract  the  factor  is  commonly  regarded  as  becoming 
a  surety  for  the  solvency  of  the  vendee,  and  a  guarantor 
of  the  payment  of  the  price  for  which  the  goods  were 
sold.2 

Master  and  Servant. — The  general  rules  of  agency 
govern  in  respect  to  master  and  servant. 

The  master  is  responsible  for  all  acts  of  the  servant 
done  within  the  scope  of  his  authority?  If  a  servant 
buys  goods  for  his  master  on  credit  contrary  to  his  in- 
structions, the  master  is  bound  if  the  servant  had  pre- 
viously bought  goods  on  credit  without  remonstrance 
from  the  master,  and  if  the  vendor  had  no  notice  of  the 
master's  instructions  to  his  servant.  A  master  is  liable 
for  torts  committed  by  a  servant  when  in  the  perform- 
ance of  his  duty,  as  if  a  coachman  employed  in  convey- 
ing his  master  from  one  place  to  another,  negligently  in- 
jure a  traveller  who  is  in  no  fault.  The  master  is  not 
liable  for  acts  committed  out  of  the  course  of  his  em- 
ployment, nor  for  wilful  trespasses  4 

The  master  is  justified  in  making  an  assault  in  de- 
fense of  his  servant,  and  a  servant  in  defense  of  his 
master.* 

1  Mechem  Agen.  §  994.  2  i  Par.  Contr.  *gi. 

3  2  Kent  Comm.  259  ,  Schouler  Dom.  Rel.  §  489. 

4  Id.  §§  490,  491.  6  2  Kent  Comm.  261. 


AGENCY — GENERAL  CLASSES  OF  AGENTS.        113 

A  master  is  bound  to  use  all  reasonable  care,  diligence, 
and  caution  in  providing  for  the  safety  of  those  in  his 
employ,  and  in  furnishing  for  their  use  sound,  safe,  and 
suitable  tools  and  machinery  ;  otherwise  he  is  liable  for 
any  injury  occurring  to  the  employee  through  defects  in 
the  tools  or  machinery  used,  provide v/the  employee  is 
guilty  of  no  contributory  negligence* 

An  employee  cannot  recover  from  his  employer  for  in- 
juries resulting  from  the  negligence  of  a  co-employee. 
Co-employees  are  those  who  directly  co-operate  with 
each  other  in  a  particular  business  in  the  same  line  of 
employment,  and  whose  usual  duties  bring  them  habit- 
ually together. 

1  See  Wood  on  Mas.  and  Ser.  §§  329,  334,  345,  372. 


CHAPTER  XXII. 

BILLS   AND   NOTES. 

A  promissory  note  is  an  unsealed  promise  in  writing 
by  one  person  to  pay  another  person  therein  named,  or 
to  his  order  or  to  bearer,  a  specified  sum  of  money 
absolutely  and  at  all  events.1  There  are  thus  six  essen- 
tials of  every  promissory  note.2 

i.  It  must  be  certain — that  is,  there  must  be  a  clear 
promise  to  pay. 

"2.  It  must  be  payable  absolutely,  unconditionally,  and 
at  all  events. 

3.  It  must  be  payable  in  money. 

4.  It   must  be   for  a  certain   and  fixed  amount  of 
money. 

5.  It  must  be  payable  at  a  certain  time,  or  at  a  time 
which  is  capable  of  becoming  certain.     Thus  a  note 
payable  on   demand,  or  at  the  death  of  A,  is  a  good 
note  ;   while  a  note  payable  "  as  soon  as  the  crop  can 
be  sold,  or  the  money  raised   from  any  other  source," 
is  not  a  promissory  note. 

6.  It  must  be  delivered.* 

The  following  is  a  form  fora  promissory  note  largely 
in  use : 

1  i  Dan.  Neg.  Ins.  §  28. 

2  See  Id.  §  30  et  seq.;   3    Kent   Comm.   75    et  seq.;    Story   Prom. 
Notes  §  24  et  seq. 

3  Story  Prom.  Notes  §  56,  n. 

(i  14) 


BILLS  AND  NOTES.  115 

$100  NEW  YORK,  N.  Y.,  Aug.  8,  1890. 

months  after  date,  I  (we)  promise  to  pay  to  A 

B.  or  order  (or  bearer)  one  hundred  dollars,  with  inter- 
est at % 

Value  received. 

CD. 

Illustrations  of  possible  indorsements  on  back  of  note. 
(See  Story  Prom.  Notes  §  138.) 

1.  A.  B.  (Indorsement  in  blank.) 

2.  Pay  to  the  order  of  E.  \ 

F.  r  Indorsement  in  full. 

A.  B.       ) 

3.  Pay  to  the  order  of  G.  )   , 

TT  E   F        \   Indorsement  m  full- 

4.  Pay  to  the  order  of  I.  \ 

J.,  without  recourse.       \  Qualified  indorsement. 
G.  H. 

5.  Pay  to  the  order  of  M.  1 

N.  if  he  be  living  when        ~      ....       ..    , 

\   Conditional  indorsement, 
the  note  becomes  due. 

i.j.   j 

6.  Pay  to  the  order  of  X.  \ 

Y.  on  account  of  M.  N.  I  Restrictive  indorsement. 
M.  N.       i 

Parties  to  a  note. — Every  note  must  have  at  least 
two  parties,  the  maker  or  payor,  as  he  is  sometimes 
called,  and  the  payee,  or  the  party  to  whom  or  to  whose 
order  the  note  is  payable.  When  a  note  is  signed  by 
two  or  more  persons  it  is  either  joint,  or  joint  and 
several.  It  is  a  joint  note  when  written  "  We  promise  to 
pay  "  and  signed  by  the  parties.  In  case  such  a  note 


Il6  A   REVIEW   IN   LAW   AND   EQUITY. 

is  not  paid,  all  the  makers  must  be  joined  in  suit.  A 
joint  and  several  note  is  one  written,  "  We  jointly  and 
severally  promise  to  pay."  In  event  of  non-payment, 
the  holder  can  sue  the  makers  jointly  or  individually. 
In  case  one  of  several  joint  and  several  makers  pays 
the  whole  amount,  he  can  recover  from  the  other 
makers  their  proportionate  shares.1 

If  the  note  be  payable  to  bearer,  title  to  it  passes  by 
mere  delivery.  If  it  be  payable  to  order,  when  trans- 
ferred it  must  be  indorsed  in  order  that  the  holder  can 
bring  suit  directly  in  his  own  name  against  the  prior 
parties  to  the  note.  No  particular  form  is  essential  in 
indorsement.  In  substance  it  consists  in  the  payee's 
writing  his  name  on  the  back  of  the  note,2  as  illustrated 
on  page  115. 

The  indorsement  of  a  note  AMOUNTS  TO  A  CON- 
TRACT on  the  part  of  the  indorser  with  and  in  favor  of 
the  indorsee  and  of  every  subsequent  holder.3 

1.  That  the  instrument   itself  and    the   antecedent 
signatures  thereon  are  genuine. 

2.  That  he,  the  indorser,  has  a  good  title  to  the  in- 
strument. 

3.  That  he  is  competent  to  bind  himself  as   an    in- 
dorser. 

4.  That   the  maker   is  competent   to  bind    himself 
and  will  pay  the  note  upon  presentment  when  it  is  due. 

5.  That  if,  when  duly  presented,  it  is  not  paid   by 
the  maker,  he,  the  indorser,  will  upon  due  and  reason- 
able notice  given  him  of  the  dishonor,  pay  the  same  to 
the  indorsee  or  other  holder. 

Indorsements  may  be  of  five  kinds — in  blank,  in 
full,  restrictive,  qualified,  conditional.4 

1  Story  Prom.  Notes  §  57;  I  Dan.  Neg.  Ins.  §  94. 
9  Story  Prom.  Notes  §§  116,  117,  120,  121. 

3  Id.  §  135;  i  Dan.  Neg.  Ins.  §  66ga. 

4  Story  Prom.  Notes  §§  38-149;   2  Par.  Bills  and  Notes  18-22. 


BILLS  AND   NOTES.  117 

1.  An  indorsement  in  blank  is  when  only  the  name 
of  the  indorser  is  written  on  the  back  of  the  note,  no 
direction  being  given  as  to  whose  order  the  note  is  to 
be  paid.      Such  an  indorsement  of  a  note  payable  to 
order  gives  it  thereafter  the  force  of  a  note  payable  to 
bearer,   and    title   can   thenceforth   be   transferred  by 
delivery.      The   last    holder  can  fill  in  above  the  in- 
dorsement in  blank,  a  direction  to  pay  to  the  order  of 
himself,  and  can  then  treat  the  blank  indorsement  as 
made  to  him,  and  the  indorser  in  blank  becomes  liable 
as  though  he  had  originally  directed  the  note  to  be  paid 
to  the  order  of  the  last  holder.     (See  indorsement  I, 
page  115.) 

2.  An  indorsement  in  full  is  when  the  name  of  the 
person  in  whose  favor  it  is  made  is  mentioned.     (See 
Indorsements  2,  3,  page  115.) 

3.  A  qualified  indorsement  is  one  in  which  the  in- 
dorser qualifies  the  duties  and  obligations  of  an  in- 
dorser which  he  would  otherwise  incur  under  the  gen- 
eral principles  of  the  law.     (See  indorsement  4,  page 
115.)     An  indorsement  without   recourse  relieves   the 
indorser  of  responsibility  in  event  of  non-payment.     It 
does  not  affect  negotiability ;  it  merely  cuts  off  subse- 
quent holders  from  any  remedy  against  the  indorser. 

4.  A  conditional  indorsement  is  one  which  involves 
some  fact  or  event  upon  the  occurrence  of  which  the 
validity  of  the  indorsement  is  ultimately  to  depend. 
(See  indorsement  5,  page  115.) 

5.  A  restrictive  indorsement  is  one  in  which  the  pay- 
ment of  the  note  is  restricted  to  a  particular  person,  or 
for  a  particular  purpose,  or  is  made  in  favor  of  a  person 
who  cannot  make  a  transfer  of  the  note  to  another.     It 
thus  restricts   the  negotiability  of  the  note.     (See  in- 
dorsement 6,  page  1 1 5.) 

There  is  no  limit  to  the  number  of  indorsements 
which  may  be  made  on  a  promissory  note.     In  case 


Il8  A   REVIEW   IN   LAW   AND    EQUITY. 

the  same  note  comes  for  a  second  time  into  the  hands 
of  the  same  holder  with  a  number  of  indorsers  and  in- 
dorsees between  the  first  and  last  appearance  of  his 
name  on  the  note,  he  stands,  with  regard  to  the  note, 
as  though  it  had  never  left  his  possession  ;  and,  in  event  of 
dishonor,  he  can  look  to  any  indorsers  prior  to  the  first 
appearance  of  his  name  on  the  note,  but  not  to  any 
subsequent  indorsers;  this  to  avoid  circuity  of  action. 1 

When,  at  the  time  a  note  is  made,  a  party  writes  his 
name  on  the  back  without  specifying  in  what  capacity 
or  for  what  purpose,  he  has  been  regarded  by  the 
courts  in  three  lights — as  a  joint  maker,  as  a  guarantor, 
as  an  indorser? 

In  many  States  this  matter  is  regulated  by  statute. 

An  accommodation  indorser  is  one  who  indorses  a 
note  for  the  benefit  of  the  payee,  to  enable  him  to  ne- 
gotiate it.  With  regard  to  subsequent  holders,  he 
does  not  differ  from  an  indorser  for  value.3 

Consideration. — A  promissory  note  is  presumed  to 
be  founded  upon  a  valid  and  valuable  consideration. 
Hence,  in  a  suit  between  the  original  parties,  or  be- 
tween an  indorser  and  his  immediate  indorsee  the 
plaintiff  is  not  obliged  to  prove  a  consideration,  but 
the  burden  of  proof  rests  upon  the  defendant  to  prove 
the  contrary.4 

A  promissory  note  is  a  contract ;  and,  as  between 
immediate  parties,  it  would  be  void  if  the  consideration 
were  immoral,  illegal,  impolitic,  or  if  it  were  tainted 
with  fraud,  extorted  by  duress,  etc.5 

But,  with  regard  to  subsequent  holders,  the  rule  is  that 
a  promissory  note,  not  overdue,  in  the  hands  of  an  in- 
nocent purchaser  for  value,  is  valid  as  against  all  prior 

1  Story  Prom.  Notes  §  151  ;  see  for  explanation  and  limitation  of 
the  rule.  2  Par.  Bills  and  Notes  30  et  seq. 

*  I  Dan.  Neg.  Ins.  §  713  ;  i  Par.  Contr.  *25O. 

3  2  Par.  Bills  and  Notes  27.  4  Story  Prom.  Notes  §  181. 

8  Id.  §§  188,  189. 


BILLS   AND   NOTES.  119 

parties  on  the  note,  regardless  of  the  original  considera- 
tion as  existing  between  maker  and  payee.1  There  are 
two  important  exceptions  to  this  rule. 

From  public  policy,  all  notes  whose  considerations 
are  usurious,  or  which  are  given  for  gambling  debts,  are 
absolutely  void  in  whatever  hands  they  may  be.a  See 
local  statutes  on  this  subject. 

The  consideration  of  a  promissory  note  may  be  in- 
quired into  in  two  cases.3 

1.  As  between  the  maker  and  \h&  payee. 

2.  As  between  an  indorser  and  his  immediate  indorsee. 
It  cannot  be  inquired  into  as  between4 

1.  An  innocent  indorsee  for  value,  and  any  prior  in- 
dorser other  than  his  immediate  indorser. 

2.  As  between  an  irtnocent  holder  and  the  maker. 

An  accommodation  note  is  one  made  without  consid- 
eration for  the  benefit  of  the  payee  to  enable  him  to 
negotiate  it.  Such  a  note  does  not  differ  from  any 
other,  so  far  as  the  rights  of  an  innocent  holder  for 
value  are  concerned.6 

In  case  of  the  note  on  page  115,  the  consideration 
could  be  inquired  into  in  a  suit  between  A  B,  and  C 
D,  or  G  H  and  I  J,  but  not  in  a  suit  on  the  note  be- 
tween I  J  and  C  D,  or  I  J  and  E  F. 

If,  however,  an  innocent  purchaser  for  value  takes  a 
note  after  it  is  overdue,  he  takes  it  as  a  dishonored 
note,  and  subject  to  all  the  equities  existing  between 
the  maker  and  payee,  or  any  indorser  and  his  im- 
mediate indorsee.  That  is,  if  such  a  purchaser  brings 
suit  on  the  note  against  the  maker  or  indorser,  the 
maker  or  indorser  can  set  up  any  defense,  such  as  lack 
of  consideration,  which  he  could  set  up  against  a 

1  Story  Prom.  Notes  §§  IQI,  192  ;  Tied.  Comm.  Paper  §  279. 

2  Id.  192  :  3  Kent  Comm.  79.  3  i  Dan.  Neg.  Ins.  §  i?4. 

4  Randolph  Comm.  Paper  §§  1885,  887  ;  Tied.  Comm.  Paper  §  154. 

5  3  Kent  Comm.  56  ;  see  i  Dan.  Neg.  Ins.  §  79°- 


120  A   REVIEW   IN   LAW   AND   EQUITY. 

suit  brought  by  the  payee,  or  immediate  indorsee ; 
Provided  it  is  a  defense  arising  from  the  transaction  in- 
volving the  note,  and  not  from  any  independent  trans- 
action.1 

Thus,  if  M,  the  purchaser  of  an  overdue  note,  should 
sue  A,  the  maker,  the  latter  could  not  set  off  against 
M  a  claim  which  he  held  against  B,  the  payee,  arising 
from  an  independent  transaction,  though  such  a  claim 
could  be  set  off  in  an  action  by  B  against  A. 

Presentment. — So  far  as  the  maker  is  concerned, 
a  note  may  be  presented  for  payment  at  any  time 
within  the  period  which  will,  under  the  statute  of  limi- 
tations, act  as  a  bar  to  any  claim  under  it.  But,  in 
order  to  bind  the  indorsers,  it  must  be  presented  to 
the  maker  for  payment  on  the  very  day  on  ivhicli  by  law 
the  note  becomes  due?  Three  causes  only  will  constitute 
a  sufficient  excuse  for  failure  to  present  for  payment, 
and  to  give  notice  to  indorsers  in  event  of  non-pay- 
ment.8 

1.  Inevitable  accident. 

2.  Irresistible  force,  such  as  war,  or  the  forbidding  of 
commercial  intercourse  with  the  maker's  country. 

3.  Unforeseen  occurrences,  such  as  the  prevalence  of 
a  malignant  disease,    which  stops  all  business  in  the 
maker's  place  of  abode. 

If  a  note  is  made  payable  on  demand,  payment  must 
be  demanded  within  a  reasonable  time*  Consult  local 
statutes  in  regard  to  this. 

A  demand  is  not  necessary  prior  to  the  bringing  of 
suit  on  a  demand  note,  unless  so  provided  by  statute. 
The  statute  of  limitations  runs  against  a  demand  note 
from  the  day  of  its  date  ; 5  against  a  note  payable  at 

1  Story  Prom.  Notes  §  178  ;  3  Kent  Comm.  91  ;  i  Dan.  Neg.  Ins. 
§  744  et  seq. 

3  Story  Prom.  Notes  §  aor. 

3  See  Id.  §§  205,  356  ;  i  Dan.  Neg.  Ins.  §  478. 

4  Story  Prom.  Notes  §  207.  5  Id.  §  29  n. 


BILLS  AND   NOTES.  12 1 

sight,  only  after  presentment.1  No  days  of  grace  are  al- 
lowed on  a  demand  note  ;  otherwise  on  a  sight  note.'1 

In  computing  the  time  at  which  a  note  payable  in  so 
many  days  after  date  is  due,  the  day  of  date  is  ex- 
cluded.3 Thus,  a  note  dated  August  8th,  and  payable 
twenty  days  after  date  (without  grace),  would  become 
due  on  August  29th. 

Days  of  grace  are  days  of  indulgence  granted  to  the 
maker  for  the  payment  of  a  note.  They  are  three  in 
number,  and  the  note  becomes  due  and  payable  on  the 
last  day  of  grace.  Days  of  grace  are  calculated  exclu- 
sive of  the  day  on  which  the  note  would  otherwise  be 
due.4  Thus,  in  the  note  on  page  115,  if  it  were  payable 
three  months  after  date,  it  would,  without  days  of 
grace,  be  due  on  November  8th.  November  gth  would 
be  the  first  day  of  grace,  and  November  i  ith  the  last, 
on  which  presentment  should  be  made.  Days  of  grace 
are  counted  consecutively  without  any  deduction  or  al- 
lowance for  intervening  holidays  or  Sunday.5  If  the 
last  day  of  grace  falls  on  Sunday,  or  a  holiday,  present- 
ment should  be  made  on  the  day  preceding. 

When  a  note  becomes  due  it  should  be  presented 
for  payment  within  reasonable  hours.  What  are 
reasonable  hours  is  to  be  determined  by  the  customs 
and  usages  of  the  place  of  payment.  If  a  particular 
place  of  payment  is  specified  in  the  note,  it  should  be 
presented  at  that  place.  Failure  to  present  at  the 
place  does  not,  however,  relieve  the  maker  from  lia- 
bility ;  otherwise,  with  the  indorsers." 

If  the  maker  had  funds  at  the  appointed  place,  and 
the  note  is  not  presented  at  that  place,  the  maker  can- 
not be  compelled  to  pay  costs  and  damages  in  a  suit 
on  the  note,  and  if  the  funds  are  at  the  appointed 

1  Randolph  Comm.  Paper  §  1608.  2  Story  Prom.  Notes  §  224. 

z  Id.  §  211.  4  Id.  §  217. 

5  Id.  §  219.  6  Id.  §§  226,  227,  230. 


122  A   REVIEW   IN   LAW   AND   EQUITY. 

place,  as  at  a  bank,  and  they  have  been  lost  by  the 
failure  of  the  bank,  he  is  exonerated  from  any  liability 
on  the  note.1 

In  case  no  place  of  payment  is  specified  in  the  note, 
it  should  be  presented  to  the  maker  personally,  or  at 
his  usual  abode  or  place  of  business.  Presentment 
should  be  made  by  the  holder,  or  his  duly  authorized 
agent,  and  the  demand  for  payment  should  be  plain 
and  unequivocal.8 

Proceedings  upon  non-payment. — Upon  the  dis- 
honor of  a  note,  it  is  the  duty  of  the  holder  to  gwzdue 
notice  thereof  to  all  prior  parties  on  the  note  to  whom 
he  intends  to  look  for  payment.  The  notice  must  be 
given  by  the  holder  himself,  or  by  a  duly  authorized 
agent.  Notice  by  a  party  without  interest  in  the  note 
is  void.* 

Notice  of  dishonor  should  be  given  personally  to  the 
party  to  be  bound,  as  indicated  above,  if  he  resides  in 
the  same  town  as  the  holder  ;  otherwise,  notice  by  mail 
is  sufficient.  Notice  by  mail  in  any  case  is  sufficient  if 
received.  When  the  notice  of  dishonor  is  given  by  mail, 
it  must  be  deposited  in  the  post-office  so  as  to  leave  by 
some  mail  on  the  day  succeeding  the  day  of  dishonor? 
Thus,  if  a  note  becomes  due  August  7th,  and  payment 
is  refused,  notice  of  dishonor  must  be  mailed  on  August 
8th,  so  that  it  may  start  on  its  way  on  that  day.  Fail- 
ure to  mail  the  notice  within  this  time  releases  all  the 
indorsers. 

If  the  holder  wishes  to  hold  all  the  indorsers,  he 
sends  a  notice  to  them  all ;  otherwise,  only  to  those  to 
whom  he  looks  for  payment.  Each  indorser,  upon  re- 
ceipt of  notice  of  dishonor,  has  the  same  time  in  which 

1  Story  Prom.  Notes  §§  227,  228.     There  is  a  conflict  in  this  respect, 
however  ;  see  Tied.  Comm.  Paper  §  310. 

2  Id.  §§  235,  242. 

3  Tied.  Comm.  Paper  §§  334~335  ;  Story  Prom.  Notes  §  301. 

4  Id-  §§  337,  339  ;  Id-  §§  312,  319  et  seq. 


NOTES   AND   BILLS.  123 

to  notify  prior  indorsers  as  the  maker  has,  that  is, 
practically  one  day.1  Suppose  A,  B,  C,  and  D  are  in- 
dorsers on  a  note  falling  due  August  7th,  and  E,  the 
holder,  mails  notice  of  dishonor  to  D  on  August  8th, 
D  receives  it  on  August  9th  ;  he  must  then  send  notice  to 
C  not  later  than  August  loth.  B  upon  receipt  of 
notice  has  until  the  day  following  in  which  to  notify  A. 
If  the  holder  notifies  all  the  indorsers,  as  A,  B,  C, 
D,  and  D  pays  the  note,  the  notice  given  to  the  other 
indorsers  by  E  inures  to  Us  benefit,  and  he  can  look  to 
them,  or  either  of  them,  for  reimbursement."  If  E 
notifies  D  alone,  and  in  due  time  D  notifies  C,  C  noti- 
fies B,  and  B  notifies  A  ;  E  can  then  look  for  payment 
to  any  of  the  indorsers,  as  A,  since  in  case  due  notice 
is  given,  the  first  indorser  will  be  ultimately  liable.3 

The  holder  must  give  his  notice,  in  event  of  dishonor, 
on  the  day  following,  no  matter  how  many  indorsers 
there  may  be.4  Thus,  E  could  not  wait  four  days  after 
dishonor  and  then  give  notice  to  the  first  indorser,  A. 

When  the  notice  is  placed  in  the  post-office,  the  party 
placing  it  has  done  all  in  his  power,  and  it  is  imma- 
terial, so  far  as  his  rights  are  concerned,  whether  the 
party  to  whom  it  is  directed  receive  it  or  not.5 

As  regards  the  form  of  the  notice,  no  precise  form  of 
words  is  necessary,  but  it  should  contain  8 

1.  A  true  description  of  the  note. 

2.  An  assertion  of  its  &\\&  presentation  and  dishonor. 

3.  An  assertion  that  the  holder,  or  other  person  giv- 
ing the  notice,   looks  to  the  party  to  whom  notice  is 
given  for  reimbursement. 

The  same  causes  as  operate  to  excuse  failure  to  pre- 
sent for  payment  will  excuse  a  failure  to  give  due  and 
regular  notice  of  dishonor.  (See  page  120.) 

1  Story  Prom.  Notes  §  331.  2  Id.  §  302. 

3  Id.  §  334.  "  Id.  332. 

5  Randolph  Comm.  Paper  §  1300.  6  Story  Prom.  Notes  §  348- 


124  A   REVIEW   IN   LAW   AND   EQUITY. 

In  the  following  special  cases,  the  indorser  is 
bound  to  the  holder,  without  receiving  notice  of  dis- 
honor. l 

1.  When  the  note  was  given  for  the  accommodation 
of  the  indorser  only ;  as  when  A  makes  a  note  payable 
to  B  for  the  latter's  accommodation,  and  the  latter  in- 
dorses and  negotiates  it. 

2.  An  original  agreement  on  the  part  of  the  indorser, 
made  with  the  maker  or  other  party,  at  all  events  to  pay 
the  note  on  maturity  to  the  holder. 

3.  The  receiving  of  security  by  an  indorser  from  the 
maker  or  other  party,  to  secure  him  against  liability 
on  the  note. 

4.  An  original  agreement  by  the  indorser  to  dispense 
with  notice. 

5.  A  release  of  a  prior  indorser  by  the  holder  releases 
all  indorsers   between    the  indorser   released  and  the 
holder,2   since   otherwise  they  could  look  to    the    re- 
leased indorser  for  indemnity,  in  case  they  were  com- 
pelled to  pay  the  note.     Such  a  release  does  not  affect 
indorsers  prior  to  the  released  indorser. 

6.  Any  giving  of  time  by  the  holder  to  the  maker, 
by  a  binding  agreement  upon  a  note's  coming  due,  will 
release  the  indofsers.3 

For  the  course  to  be  pursued  by  the  holder  of  a  lost 
or  destroyed  note  as  against  the  maker  or  indorsers, 
see  local  statutes. 

Promissory  notes  (non-negotiable). — A  promissory 
note  payable  to  a  particular  person,  without  containing 
any  words  of  negotiability,  may  be  assigned,  and  the  pur- 
chaser can  bring  suit  against  the  maker  in  the  name  of 
the  assignee.  If  such  a  note  is  indorsed  by  the  payee, 
the  indorser  incurs  the  ordinary  liability  of  an  indorser 
on  a  negotiable  note,  so  far  as  his  immediate  indorsee 
is  concerned,  but  there  is  no  privity  between  him  and 

1  Story  Prom.  Notes  §  357.  2  Id.  §  423.  3  Id.  §  413. 


NOTES  AND   BILLS.  125 

any  subsequent  holder  of  the  note;1  that  is,  each  in- 
dorser  and  his  immediate  indorsee  do  not  differ  from 
the  same  parties  to  a  negotiable  note,  but  they  have 
no  privity  with  either  prior  or  subsequent  parties.  The 
holder  can,  however,  use  the  name  of  the  payee  in  a 
suit  against  the  maker. 

A  bill  of  exchange  or  draft  is  a  written  order  or  re- 
quest by  one  person  upon  another  to  pay  to  some  third 
party,  or  his  order,  or  to  bearer,  a  certain  sum  of  money. 
The  six  essentials  to  a  promissory  note  also  apply  to 
the  case  of  a  bill  of  exchange. 

There  are  three  parties  to  every  bill:  the  drawer,  who 
corresponds  to  the  maker  of  a  note  ;  the  drawee,  or  per- 
son to  whom  the  bill  is  addressed,  and  who  is  requested 
to  make  the  payment ;  the  payee,  or  person  in  whose 
favor  the  bill  is  drawn.2  The  bill  may  be  made  pay- 
able on  demand,  or  at  sight,  or  so  many  days  after 
sight,  or  on  a  day  certain. 

When  a  bill  is  payable  at  sight,  or  so  many  days  after 
sight,  the  payee  should  present  it  to  the  drawee  for  ac- 
ceptance within  a  reasonable  time.  What  is  a  reason- 
able time  depends  upon  the  circumstances  of  each 
case,  unless  regulated  by  statute.3 

When  a  bill  is  accepted  by  the  drawee,  he  is  called 
the  acceptor,  and  becomes  the  party  primarily  liable. 
The  indorsers  on  the  bill  stand  in  precisely  the  relation 
of  indorsers  on  a  note,  while  the  drawer  becomes  a 
surety,  and  in  event  of  non-payment  by  the  acceptor, 
becomes  liable  to  the  holder  of  the  bill.4  After  accept- 
ance, the  acceptor  can  be  released  from  liability  in  only 
two  ways  :s 

1.  By  payment 

2.  By  a  release  from  the  holder. 

1  Story  Prom.  Notes  §  128  ;  Tied.  Comm.  Paper  |§  242,  257!). 

2  3  Kent  Comm.  75. 

3  i  Par.  Bills  and  Notes  §  377  :  3  Kent  Comm.  83. 

4  Id.  86.  5  Id. 


126  A   REVIEW   IN   LAW   AND   EQUITY. 

Acceptance  may  be  of  two  kinds  : 

1.  General,  or  according  to  the  terms  of  the  bill. 

2.  Special,  or  one  varying  the  terms  of  the  bill  in 
some  particular.      A  special   acceptance  binds  the  ac- 
ceptor, but  the  holder  is  not  obliged  to  take  a  special 
acceptance.     If  he  does  so,  it  releases  the  drawer  and 
indorsers  from  any  liability  on  the  bill.1 

Acceptance  may  be  by  parol  or  in  writing.  The 
common  method  is  for  the  acceptor  on  presentation  of 
the  bill  to  write  the  word  "accepted  "  with  his  signa- 
ture on  its  face.1  The  drawee  has  a  reasonable  time  in 
which  to  accept  the  bill  after  it  has  been  presented. 
This  is  largely  regulated  by  statute. 

A  promise  to  accept  a  bill,  made  before  actual  accept- 
ance, amounts  to  an  acceptance  in  favor  of  the  person 
to  whom  the  promise  is  made,  and  who  took  the  bill 
on  the  strength  of  it." 

If,  upon  presentation,  acceptance  is  refused,  the 
holder  should  give  the  indorsers  notice,  the  rules 
governing  the  notice  being  identical  with  those  hold- 
ing in  case  of  notice  to  indorsers  upon  the  dishonor  of 
a  note.  If  a  third  person,  upon  the  refusal  of  the 
drawee  to  accept,  intervenes  and  accepts  the  bill,  it  is 
called  an  acceptance  supra  protest. 

A  holder  is  not  obliged  to  accept  an  acceptance 
supra  protest,  but  once  accepted  the  acceptor  supra 
protest  becomes  primarily  liable,  and  if  he  pays 
the  bill  has  his  remedy  against  the  prior  parties  to  the 
bill.4 

Protest. — Bills  of  exchange  may  be  divided  into  two 
classes : 

i.  Domestic,  or  those  drawn  and  payable  in  the  same 
country. 

1  2  Randolph  Comm.  Paper  §  621  ;  i  Dan.  Neg.  Ins.  §  471. 

4  3  Kent  Comm.  84;   i  Par.  Bills  and  Notes  281,  282. 

8  Id.  84.  4  3  Kent  Comm.  '87. 


NOTES  AND   BILLS.  127 

2.  Foreign,  or  those  drawn  in  one  country  and  p&,y. 
able  in  another. 

In  the  case  of  a  foreign  bill,  presentment  must  be 
made  by  a  notary,  and  protest  must  be  made  by  him  i'j 
event  of  non-acceptance.  As  regards  bills  of  exchange 
the  States  are  regarded  as  foreign.1 

The  rules  regarding  days  of  grace,  etc.,  apply  to  bllb 
of  exchange  as  well  as  notes. 

Bank  checks  partake  largely  of  the  nature  of  drafts, 
the  bank  being  the  drawee.  A  check  should  be  pre- 
sented for  payment  within  a  reasonable  time;  otherwise 
any  damage  resulting  from  a  failure  to  present,  falls  upon 
the  payee,  and  not  on  the  maker.2  Thus  if  A,  having 
funds  in  a  bank,  gives  B  a  check  upon  the  bank,  and  B 
does  not  present  it  for  payment  for  a  year,  within 
which  time  the  bank  fails,  the  loss  falls  upon  B,  and  he 
has  no  remedy  against  A.  What  is  a  reasonable  time 
for  presentment  depends  upon  the  circumstances  in 
each  case.  Presentment  for  payment  should  be  made 
as  soon  as  possible. 

The  giving  of  a  check  is  not  ordinarily  payment,  but 
only  a  means  of  enabling  the  payee  to  obtain  the 
money  with  which  to  satisfy  his  claim.3 

1  3  Kent  Comm.  93  ;  i  Par.  Bills  and  Notes  642. 

2  2  Dan.  Neg.  Ins.  §§  1567,  1590.  3  Id.  §  1623. 


CHAPTER   XXIII. 

PARTNERSHIP. 

I.  THE  NATURE,  CREATION,  AND  EXTENT  OF  PARTNER- 
SHIP. 

Partnership  is  a  contract  of  two  or  more  competent 
persons,  to  place  their  money,  effects,  labor,  or  skill  in 
lawful  commerce  or  business  and  to  divide  the  profit 
and  bear  the  loss  in  certain  proportions.  The  two 
leading  principles  of  the  contract  are  : 

1.  A  common  interest  in  the  stock  of  the  company. 

2.  A. personal  responsibility  for  the  partnership  engage- 
ments.1 

Partners  may  be  divided  into  four  classes  :a 

1.  General  partners,  or  those  who  are  held  out  to  the 
world  as  such,  and  who  are  personally  liable  to  the  full 
extent  of  their  property  for  the  partnership  debts. 

2.  Special  or  limited  partners,  or  those  who  invest  a 
certain  amount  in  the  capital  of  the  firm,  and  whose 
liability  as  partners  is  limited  to  that  amount.     This 
subject  is  regulated  by  statute. 

3.  Dormant  partners,  or  those  who  share  in  the  profits 
of  the  firm,  but  have  no  active  concern  in  its  manage- 
ment, and  who  are  not  held  out  to  the  world  as  partners. 

4.  Latent  partners,  who  differ  from  dormant  partners 
only  in  that  they  are  actively  concerned  in  the  manage- 
ment of  the  business  of  the  partnership.     The  terms 
dormant  and  silent  partners  are  sometimes  used  syno- 
nymously. 

Persons  are  partners  as  regards  third  parties,  if  one 
of  two  facts  exists. 

1  3  Kent  Comm.  23,  24.  *  Story  Part.  §§  74,  75,  80. 

(128) 


PARTNERSHIP. 


129 


1.  If  they  allow  themselves  to  be  held  out  to  the  world 
as  such. 

2.  If  they  share  in  the  profits  of  the  firm,  since,  by 
sharing  in  the  profits,  they  deduct  so  much  from  the 
funds  to  which  the  partnership  creditors  look.     On  this 
principle,  dormant  and  silent  partners  are  liable  to  the 
full  extent  of  their  property  to  partnership  creditors. 

To  make  persons  partners  inter  sese,  an  actual  inten- 
tion to  that  effect  is  necessary.1 

Partnership  may  be  created  by  parol  as  well  as  by 
writing,  and  can  be  inferred  from  circumstances? 

II.      THE    RIGHTS   AND    DUTIES  OF  PARTNERS   IN   RE- 
GARD  TO  EACH  OTHER  AND  THE  PUBLIC. 

In  regard  to  their  stock  in  trade,  partners  differ  from 
joint  tenants  in  that  there  is  no  right  of  survivorship, 
and  from  tenants  in  common,  in  that  a  partner  can  dis- 
pose of  the  whole  stock  in  trade,  while  a  tenant  in  com- 
mon can  dispose  only  of  his  individual  share.3 

If  the  capital  stock  be  invested  in  land,  the  land  is 
regarded  as  personalty  so  far  as  the  creditors  are  con- 
cerned. If  it  is  agreed  between  the  partners  that  the 
land  bought  with  the  capital  shall  be  regarded  as  per- 
sonal property,  this  agreement  governs,  and  upon  the 
decease  of  a  partner,  his  share  in  the  land  will  go  to  his 
personal  representatives,  as  personal  property.  In  the 
absence  of  such  an  agreement,  there  is  a  conflict  of 
opinion  as  to  whether  the  land  will  go  to  the  heirs- 
at-law  or  the  personal  representatives.4  (See  statutes.) 

The  acts  of  each  partner  in  matters  relating  to  the 
partnership  are  regarded  as  the  act  of  all  and  bind 
all  alike,  each  partner  being  regarded  as  the  agent 
of  the  others  in  all  partnership  affairs.  All  acts 
done  within  the  scope  of  this  agency  bind  all 

1  3  Kent  Comm.  32.     See  i  Lindley  Part.  *33  et  seq. 

2  Id.  28.  3  Story  Part.  §  90.  4  Story  Part.  §§  gc,  93- 


130  A   REVIEW   IN   LAW   AND   EQUITY. 

members  of  the  firm.  The  question  as  to  whether 
a  particular  act  is  within  the  scope  of  a  part- 
ner's authority  as  agent,  depends  upon  whether 
the  act  is  appropriate  or  incident  to  the  trade 
or  business,  according  to  the  common  course  and 
usages  thereof.  Any  private  agreement  or  contract 
between  the  partners  will  not  release  partners  from 
liability  for  the  acts  done  by  one  of  their  number, 
unless  such  agreement  were  known  to  the  parties 
dealing  with  the  partner.  Each  partner  is  a  general 
agent  with  regard  to  his  copartners.1 

One  partner  cannot  bind  the  others  by  an  instrument 
under  seal  unless  he  has  authority  by  a  sealed  instru- 
ment, except  in  two  cases  :2 

1.  By  a  release  given  to  a  debtor  upon  payment  of  a 
claim. 

2.  By  an  instrument  under  seal,  when  the  partnership 
is  in  bankruptcy. 

The  majority  of  a  firm  acting  in  good  faith,  can  bind 
the  minority  in  ordinary  transactions,  when  all  have 
been  consulted.3  One  partner  can  sell  the  whole  stock 
in  trade  unless  such  stock  be  land,  in  which  case  he  can 
dispose  of  his  own  interest  only.4 

The  admission  of  an  antecedent  debt  by  one  partner, 
if  made  during  the  continuance  of  the  partnership, 
binds  all  the  partners  and  takes  the  debt  out  of  the 
statute  of  limitations.5 

If  one  partner  borrow  money  on  the  credit  of  the 
partnership,  all  the  partners  are  liable,  though  the 
money  be  diverted  by  the  borrowing  partner  to  his  own 
use.  On  the  other  hand,  if  one  partner  borrow  money 
on  his  own  credit,  the  partnership  is  not  liable,  though 

'  See  3  Kent  Comm .  41  et  seq. ;  Story  Part.  §§  101,  102;  i  Lindley 
Part.  *23&  et  sef. 

2  Par.  Part.  £§  122,  123.     See  i  Lind.  Part.  *278. 

3  Story  Part.  §  123.  4  Id.  §94.  5  3  Kent  Comm.  49. 


PARTNERSHIP.  13! 

the  money  be  used  for  partnership  purposes.  The 
question  in  each  case  is  to  whom  credit  was  given.1 

One  partner  is  not  permitted  to  deal  on  his  pri- 
vate account  in  any  business  which  is  obviously  at 
variance  with  the  business  of  the  partnership.3 

III.  Dissolution. — A  partnership  may  be  dissolved 
in  six  ways  :3 

1.  By  the  voluntary  act  of  any  partner.     The  pre- 
vailing rule  is  that  any  partner  can  dissolve  the  part- 
nership   at  will,  though  it    had  been  agreed  that  the 
partnership  should    continue    for    a    definite  time,  or 
that  notice  of  an  intention  to  dissolve  should  be  given. 
The    other   partners  have  an  action  for   damages  for 
breach  of  contract.     In  cases  involving  great  loss  by  an 
immediate    dissolution,    a   loss  which    could    not    be 
adequately   repaired    by  a  judgment    for   damages,  a 
court  of   equity    might    restrain  a  partner    from   dis- 
solving a    partnership   contrary  to  the  copartnership 
articles.4 

2.  By  the  death  of  a  partner,  which  ipso  facto  dis- 
solves any  partnership. 

3.  By  the  insanity  of  a  partner.     This  does  not  ipso 
facto  dissolve  a  partnership,  but  when  once  established, 
it  affords  sufficient  ground  for  a  court  of  equity  to  de- 
cree a  dissolution. 

4.  By  the  bankruptcy  either  of  the  whole  partnership 
or  of  an  individual  member. 

5.  By  judicial  decree,  upon  any  ground  which  seems 
to  the  court  sufficient,  as  insanity  or  habitual  drunken- 
ness. 

6.  By  any  change  in  the  condition  of  a  partner  which 
renders  him  unable  to  carry  out  hjs  part  in  the  part- 
nership business. 

1  Par.  Part.  §  88  ;  Story  Part.  §  134  ;  i  Lind.  Part.  '303. 

2  sKentComm.si.  3  Id.  &etseq. 
4  Id.  54  ;  i  Par.  Contr.  *ig5.     See  Story  Part.  §  275- 


132  A   REVIEW   IN   LAW   AND   EQUITY. 

When  one  partner  retires  from  a  firm,  notice  of  the 
fact  must  be  given  to  all  persons  who  have  dealt  with 
the  firm  in  order  to  relieve  him  from  any  subsequent 
liability  as  a  partner  to  such  persons.  To  persons  who 
have  not  dealt  with  the  firm,  the  publication  of  notice 
of  dissolution  in  a  paper  of  the  place  where  the  busi- 
ness is  located  is  sufficient.  Actual  notice  must  be 
given  to  the  parties  who  had  had  dealings  with  the 
firm  when  the  retiring  partner  was  still  connected 
with  it.1 

A  retiring  partner  cannot  allow  his  name  to  be  used 
as  a  member  of  the  firm  without  incurring  liability,  but 
if  he  has  given  due  notice  of  his  retirement,  and  his 
name  is  still  used  against  his  will,  he  is  not  compelled 
to  take  legal  measures  to  restrain  the  use  of  his  name.2 

Upon  the  dissolution  of  a  partnership,  the  partner- 
ship creditors  must  first  look  to  the  partnership  funds 
for  the  satisfaction  of  their  claims,  while  the  individual 
creditors  look  to  the  private  funds  of  each  partner.  If, 
after  the  satisfaction  of  the  claims  of  private  creditors, 
there  is  any  surplus,  the  partnership  creditors  can  look 
to  this  in  case  the  partnership  funds  do  not  satisfy  their 
claims  and  vice  versa? 

1  3  Kent.  Comm.  66  et  seq.  2  Id.  68.  3  Id.  65. 


CHAPTER   XXIV. 

OTHER  CONTRACTS — MATTERS  OF  DEFENCE. 

I.  Suretyship  and  guaranty.— A  guaranty  is  a 
promise  to  answer  for  the  payment  of  a  debt,  or  the 
performance  of  a  duty  in  the  case  of  the  failure  of  an- 
other person  who  is  primarily  liable  to  pay  the  debt,  or 
perform  the  duty.1  The  words  guarantor  and  surety 
are  sometimes  used  as  synonymous,  but  in  event  of  the 
default  of  the  principal,  the  guarantor  is  entitled  to 
reasonable  notice  of  the  default,  and  if  reasonable  notice 
is  not  given,  he  is  let  out  of  Jiis  obligation  to  the  extent 
that  he  has  been  damnified  by  failure  to  receive  notice, 
while  the  surety  is  entitled  to  no  notice  of  the  default 
of  the  principal,  but  becomes  himself  primarily  liable 
upon  his  principal's  default.2  The  chief  difference  be- 
tween an  indorser,  a  surety,  and  a  guarantor  is  in  the 
nature  of  the  notice  to  which  each  is  entitled  upon  de- 
fault of  the  principal.3 

When  the  guarantee,  though  collateral  to  the  prin- 
cipal contract,  is  made  at  the  same  time  with  it,  and 
becomes  a  ground  of  the  credit  given  to  the  principal 
debtor,  the  whole  is  regarded  as  one  transaction,  and 
the  consideration  of  the  principal  contract  extends  to, 
and  becomes  the  consideration  of  the  guarantee. 
When  the  guarantee  is  made  stibsequent  to  the  prin- 

1  3  KentComm.  121.  *  See  Id.  124. 

3  This  is  true  of  these  parties  only  in  connection  with  negotiable  in- 
struments. In  general,  the  surety's  liability  is  a  primary  liability  ; 
that  of  a  guarantor  secondary.  See  Baylies  on  Sureties  and 
Guarantors  3. 

(133) 


134  A  REVIEW   IN  LAW  AND   EQUITY. 

cipal  contract,  there  must  be   a  new  consideration  in 
order  to  support  it.1 

Sureties  and  Guarantors — How  Released. — Sure- 
ties and  guarantors  may  be  released  from  liability  in 
four  ways.2 

1.  By  any  fraud  practiced  by  the  principal  debtor  or 
his  creditor. 

2.  By  the  release  of  the  principal  debtor  for  a  good 
consideration.     The  mere  promise  on  the  part  of  the 
creditor  to  give  additional  time  for  payment  when  the 
debt  becomes  due,  does  not  release  the  surety,  there 
being  no  consideration ;  otherwise,  in  case  of  a  prom- 
ise to  give  time  founded  upon  a  consideration. 

3.  By  any  alteration,  by  the  creditor  and  principal 
debtor,  of  the  terms  of  the  original  agreement,  without 
the  consent  of  the  surety. 

4.  By  the  commission  or  omission  on  the  part  of  the 
creditor  of  any  act  injurious  to  the  surety.     Thus,  if  the 
surety  holds  collateral  security  or  funds  applicable  to 
the  debt,  the  negligent  loss  of  or  injury  to  such  funds 
by  the  principal  affords  the  surety  ground  for  relief  in 
equity. 

In  case  a  surety  is  compelled  to  pay  the  debt,  he 
stands  in  the  place  of  the  principal  creditor,  and  is  sub- 
rogated  to  all  his  rights  and  remedies  with  regard  to 
the  principal  creditor. 

II.  A  novation  is  a  substitution  of  a  new  debt  for 
an  old.  It  may  arise  in  three  ways.8 

1.  When  a  debtor  contracts  a  new  engagement  with 
his  creditor  in  consideration  of  being  released  from  the 
former  engagement ;  as  when  A  owes  B  fifty  dollars, 
and  the  latter  accepts  A's  promissory  note  in  satisfaction 
of  the  original  debt. 

2.  By  the  intervention  of  a  new  debtor,  as  if  B  owes 

1  3  Kent  Comm.  123  ;  Baylies  on  Sureties  53<?/  seq. 

*  I  Chitty  Contr.  773  et  seq.  3  2  Chitty  Contr.  1371. 


OTHER   CONTRACTS— MATTERS   OF  DEFENCE.    135 

C,  and  from  an  independent  transaction  A  becomes  in- 
debted to  B,  and  A  promises  to  pay  B's  debt  to  C,  and 
C  accepts  the  arrangement  and  discharges  B. 

3.  By  the  intervention  of  a  new  creditor.  Thus,  if  B, 
having  a  claim  against  A,  sells  it  to  C,  and  A  promises 
C  to  pay  him  the  amount  thereof,  C  becomes  a  substi- 
tuted creditor,  and  the  promise  is  binding  upon  A. 
*  III.  Arbitration. — When  two  parties  have  submitted 
a  question  of  unliquidated  damages  to  the  decision  of 
an  arbitrator,  and  he  has  made  his  award,  the  award  is 
binding,  unless  it  can  itself  be  impeached,  and  in  case 
of  an  action  being  brought  on  the  matter  submitted  to 
arbitration,  the  plea  of  arbitrament  and  award  is  a 
good  bar.1  But  a  mere  agreement  to  submit  to  arbitra- 
tion is  not  a  bar  to  an  action  on  the  matter  in  dispute, 
neither  is  the  pendency  of  an  arbitration." 

Defences. — There  are  ten  usual  defences  to  actions 
in  contract.* 

1.  Performance  of  the  contract. 

2.  Payment. 

3.  Accord  and  satisfaction. 

4.  The  taking  of  a  bill  of  exchange,  or  other  negoti- 
able instrument  in  payment  of  the  claim. 

5.  The  release  of  the  claim  by  an  instrument  under 
seal,  which  implies  a  consideration. 

6.  Tender*     A  tender  can  be  pleaded  only  when  the 
claim  is  for  certain  and  liquidated  damages.     It  must 
be  for  the  whole  amount  due,  in  money  which  is  legal 
tender  for  debts,  and  must  be  made  absolutely  and  un- 
conditionally. 

7.  The  statute  of  limitations. 

8.  A  set-off,   or  a  cross-claim,  for  which   an   action 
might  be  maintained  by    the  defendant   against   the 
plaintiff.     The  set-off  must  be  for  a  certain  and  liqui- 

1  2  Chitty  Contr.  1179.  *  Id-  Il83  '•  Morse  on  Arb.  79* 

3  See  2  Chitty.  Contr.  1057  ft  seq.       *  Id.  1184  et  seq. 


136  A   REVIEW   IN   LAW  AND   EQUITY. 

dated  amount,  and  the  claim  must  have  been  in  exist- 
ence at  the  time  when  the  action  was  begun  by  the 
plaintiff. 

9.  Infancy. 

10.  Bankruptcy,  or  insolvency. 

Rules  for  the  construction  and  interpretation  of  con- 
tracts and  written  instruments.' 

1.  The  intention  of  the  parties  is  the  chief  thing  to 
be  looked  to  and  ascertained  in  the  construction  of  a 
contract. 

2.  The  subject-matter  of  the  contract,  and  the  situa- 
tion of  the  parties  are  to  be  considered  in  determining 
the  meaning  of  the  language  used. 

3.  Contracts  are  presumed  to  be  legal,  and  when  a 
contract    is   capable   of  two    interpretations,    one    in 
harmony  with  and   the  other  contrary  to  the  law,  the 
construction  favors  the  former. 

4.  Words  are  to  be  understood  in  their  common  and 
every-day  sense. 

5.  All  parts  of  a  contract  will  be  construed  so  as  to 
be  given  effect. 

6.  In   a   deed,    the   construction    is   most    strongly 
against  the  grantor. 

7.  When  two  parts  of  a  deed  are  repugnant,  the  first 
is  given  effect ;  when  two  parts  of  a  will  are  repugnant, 
the  latter  is  given  effect. 

1  I  Chitty  Contr.  103  et  seq. 


CHAPTER   XXV. 

QUASI-CONTRACTS. 

An  obligation,  quasi-contractual  in  its  nature  (fre- 
quently called  a  contract  implied  in  law),  is  one  which, 
though  in  no  way  resting  on  the  consent  of  the  parties, 
can  yet,  by  a  fiction  of  law,  be  enforced  in  an  action  of 
contract.  Though  these  obligations  are  not  infre- 
quently classed  with  contracts,  the  impropriety  of  such  a 
classification  is  evident  from  the  absence  of  the  element 
of  consent,  which  lies  at  the  base  of  all  true  contracts.1 

A  contract  implied  in  fact  does  not  differ  in  principle 
from  an  express  contract,  but  merely  in  the  nature  of 
the  evidence  by  which  it  is  established.  The  latter 
is  proved  by  the  terms  used  by  the  parties ;  the  former, 
wholly  or  in  part,  by  their  acts.  The  contract  implied 
in  fact  is  the  result  of  inference ;  the  contract  implied  in 
law  is  a  legal  fiction,  imposing  a  contractual  obligation 
where  there  was  no  contract?  Thus,  a  plaintiff  can  re- 
cover from  a  lunatic  for  necessaries  furnished,  in  an 
action  of  contract.  Yet,  by  presumption  of  law,  the 
defendant  is  actually  without  power  to  bind  himself  by 
a  contract,  and  the  obligation  imposed  by  law  in  this 
case,  for  the  benefit  of  the  plaintiff,  is  perhaps  as  good 
an  illustration  as  could  be  given  of  an  obligation  quasi- 
contractual  in  its  nature. 

These  obligations  have  been  classified  with  con- 

1  Keener  Quasi-Contracts. 

9  Pollock  Contr.  *28  ;  Leake  Contr.  74  I  i  Pothier  Obi.  60,  61  ; 
Church  v.  Gas  Light  Co.,  6  A.  and  E.  846  ;  Rhodes  v.  Rhodes,  44 
Ch.  D.  94 ;  Sceva  v.  True,  53  N.  H.  627  ;  see  Bish.  Contr.  §  182 
et  sea. 

(137) 


138  A   REVIEW   IN   LAW  AND   EQUITY. 

tracts  as  a  result  of  the  application  of  the  action  of  as- 
sumpsit  to  their  enforcement.  In  this  action  a  promise 
must  always  be  alleged ;'  therefore,  the  fiction  of  a 
promise  was  adopted  to  bring  the  obligation  within  the 
scope  of  the  remedy/  It  was  sought  to  extend  relief 
in  contract,  because  in  many  instances  of  quasi-con- 
tract  no  conceivable  fiction  could  have  brought  them 
within  reach  of  an  action  in  tort,  and  the  common-law 
courts  were  obliged  to  use  either  one  or  the  other  if 
they  were  to  afford  a  remedy  at  ^all.  Ordinarily,  to 
avoid  committing  a  tort,  one  has  only  to  refrain  from 
acting;  but  often  in  quasi-contract,  inaction  on  the  part 
of  the  defendant  is  precisely  the  ground  on  which  lie  is 
sought  to  be  charged :  as  when  a  husband,  ignorant  of 
his  wife's  death,  is  compelled  to  reimburse  one  who  has 
paid  her  funeral  expenses,  or  when  an  action  is  brought 
on  a  judgment.  No  fiction  could  have  brought  either 
of  these  instances  within  the  reach  of  an  action  of  tort ; 
at  least  no  fiction  would  have  been  as  natural  as  is  that 
of  an  implied  promise  which  renders  an  action  of  as- 
sumpsit  possible.3 

CLASSES  OF  QUASI-CONTRACTS. 

Although  quasi-contracts  have  been  divided  into 
those  based  upon  a  record,  upon  a  statutory,  official,  or 
customary  duty,  and  upon  the  doctrine  of  unjust  enrich- 
ment? the  last  class  overshadows  the  others  in  extent 
and  importance.  The  debt  created  by  \\^&  judgment  of 
a  court  of  record  is  called  a  contract  of  record,  and  can 
be  made  the  ground  of  an  action  of  contract,6  but  the 
obligation  is  plainly  quasi-contracfual  in  its  nature,  since 
it  does  npt  rest  upon  the  agreement  of  the  parties.6 

As  illustrative  of  the  second  class  may  be  mentioned 

1  Chitty  Plead.  301.  «  Pollock  Contr.  *2g. 

3  See  Keener  Quasi-Contracts.  4  Id.  5  Leake  Contr.  125. 

*  Louisiana  v.  New  Orleans,  109  U.  S.  285. 


QUASI-CONTRACTS.  139 

the  recovery  of  half  pilotage  fees,  under  a  statute  allow- 
ing such  fees  when  a  pilot's  services  are  refused ;'  the 
obligation  of  a  sheriff  to  pay  the  proceeds  of  an  execution 
to  the  judgment-creditor;3  the  duty  of  a  common  carrier 
to  receive  goods  offered  for  transportation.* 

Quasi-contracts  based  on  the  doctrine  of  unjust  en- 
richment.— Quasi-contracts  of  this  character  have  been 
described  to  be  those  importing  that  some  undue  pe- 
cuniary inequality  exists  in  the  one  party  relatively  to 
the  other,  which  the  law  recognizes  as  requiring  com- 
pensation upon  equitable  principles,  and  upon  which  the 
law  operates  by  creating  a  debt  to  the  amount  of  the 
required  compensation.4  In  all  cases,  the  retention  of 
the  money,  or  the  enjoyment  of  the  benefit  by  the 
defendant,  must  \>e  against  good  conscience.  In  all  cases 
the  transaction  must  result  in  the  unjust  enrichment 
of  the  defendant,  riot  merely  in  the  impoverishment  of 
or  detriment  to  the  plaintiff. 

Quasi-contracts  of  this  nature  may  be  divided  into 
two  general  classes.5 

I.  Those  arising  when  money  has  been  paid  by  one 
person  for  the  use  of  another. 

II.  Those  arising  when  money  has  been  received  by 
one  person  for  the  use  of  another. 

I.  The  general  rule  giving  rise  to  quasi-contracts  of 
this  class  is,  that  when  a  person  has  paid  money  for  an- 
other under  circumstarices  and  upon  occasions  which 
make  it  just  and  equitable  that  he  should  be  repaid,  a 
contract  for  repayment  may  generally  be  implied  in 
law  without  any  actual  agreement  to  that  effect.* 

1  Steamboat  Co.  v.  Joliffe,  2  Wall.  450.  2  3  Bl.  Comm.  163. 

3  Keener  Quasi-Contracts  ;  Pollock  Contr.  *28. 

4  Leake  Contr.  74  ;  see  Moses   v.  Macfarlan,  2  Burr.   icoS  ;  Smith 
v.  Jones,  ii  L.  J.  C.  P.  100  ;  Lewis  v.  Campbell,  8  C.  B.  545. 

5  Leake  Contr.  76. 

6  Leake  Contr.  77  ;  Lewis  v.  Campbell,  8  C.  B.  545  ;  Lawson  Contr. 
§  51  ;  Ralston  v.  Wood,  15  111.  159. 


140  A   REVIEW   IN   LAW   AND   EQUITY. 

Three  principles  are  to  be  noted  in  this  connec- 
tion. 

1 .  A  quasi-contractual  obligation  arises  when  a  person 
has  been  compelled  by  law  to  pay,  or,  being  legally  com- 
pellable,  has  paid  money  which  another  person  was  pri- 
marily liable  to  pay,  so  that  the  latter  has  gained  the 
benefit  of  the  payment.1 

2.  A  quasi-contractual  obligation  cannot  be  created 
by  the  payment  of  the  debt  of  another  which  is  merely 
voluntary.     The  payment   must  be  made  under  legal 
liability,  or  under  compulsion  of  some  sort.2 

3.  Though  the  payment  be  compulsory,  it  will  create 
no  quasi-contractual  obligation  in  favor  of  the   plaintiff, 
unless  it  operates  to  discharge  a  liability  of  the  defend- 
ant which  is  recognized  as  such  either  in  law  or  equity. 
The  discharge  of  a  merely  moral  obligation  creates  no 
rights  in  favor  of  the  person  discharging  it  against  the 
person  for  whom  it  is  discharged.3 

Quasi-contractual   obligations    of   Class  I.  ARISE 

COMMONLY  IN  THREE   INSTANCES. 

1.  When  a  surety  who  has  been  compelled  to  pay 
the  debt  guaranteed  is  entitled  to  be  reimbursed  by 
the  principal  debtor. 

Although  the  surety's  right  to  recover  in  this  in- 
stance can  be  established  on  the  basis  of  a  contract  im- 
plied in  fact,  yet  it  was  originally  recognized  as  resting 
on  a  contract  implied  in  law* 

2.  When  a  co-surety  or  a  debtor  who  has  paid  more 
than  his  share  of  the  debt,  is  entitled  to  contribution 

1  Leake  Contr.  77,  cases  cited  ;  Hutton  v.  Eyre,  6  Taunt.  289. 

s  Leake  Contr.  85  ;  Keener  Quasi-Contr.  388  et  seq. ;  Johnson  v. 
Royal  Mail  Co.,  L.  R.  3  C.  P.  43  ;  Winsor  v.  Savage,  9  Met.  346  ; 
Jones  v.  Wilson,  3  Johns.  434  ;  Woodford  v.  Leaven  worth,  14  Ind  311. 

3  Atkins  v.   Banwell,   2  East   505  ;  Sayles  v.  Blane,  14  Q.  B.  205  ; 
Lawson  Rights,  Rem.  and  Pr.  §  2550  ;  Leake  Contr.  86. 

4  Leake  Contr.  79  ;  Bish.  Contr.  and  cases  cited. 

5  Keener  Quasi-Contr.  400  and  cases  cited. 


QUASI-CONTRACTS.  14! 

from  the  other  co-sureties  or  co-debtors.  Although 
the  right  to  recover  can  in  this  case  be  ordinarily  sus- 
tained on  the  basis  of  a  contract  implied  in  fact,  yet  it 
has  sometimes  been  recognized  as  quasi-contractual,1 
and  in  some  instances  it  must  apparently  be  recognized 
as  such,  as  when  two  persons,  who  are  sureties  for  the 
same  debt,  unknown  to  each  other,  by  different  instru- 
ments and  at  different  times,  are  held  to  be  co-sureties  l 
in  the  matter  of  contribution.1 

In  this  connection  a  limitation  on  the  common  state- 
ment that  there  is  no  right  of  contribution  as  between 
joint  tort-feasors  should  be  noticed.  While  the  prin- 
ciple is  true  as  between  tort-feasors  who  knowingly  and 
wilfully  commit  the  wrong,  it  does  not  apply  to  a 
plaintiff  who  has  innocently  done  an  act  not  tortious 
in  its  nature,  but  who  has  been  compelled  to  indemnify 
a  party  injured  thereby.3  Thus,  in  Churchill  v.  Holt,4 
it  was  held  that  the  plaintiff,  who  was  the  lessee  of  a 
building  and  who  had  been  compelled  to  indemnify  a 
person  for  injuries  received  in  falling  through  an  open 
hatchway,  could  recover  from  the  defendant  whose  ser- 
vants had  left  the  hatchway  open  without  the  knowl- 
edge of  the  plaintiff. 

The  right  of  an  insurer,  who  has  been  compelled  to 
pay  for  the  loss  arising  from  injuries  to  property,  to 
recover  from  the  person  who  is  primarily  liable  for  the 
loss,  is  identical  in  principle  with  the  right  of  contribu- 
tion of  co-sureties.5 

3.  When  one  person,  whose  goods  are  in  legal  re- 

1  Deering  v.  Earl  of  Winchelsea,  2  B.  and  P.  270  ;  see  Tobias  v. 
Rogers,  13  N.  Y.  59. 

3  Deering  z>.  Earl,  supra;  Whiting  v.  Burke,  6  Ch.  342  ;  Norton  v. 
Coons,  6  N.  Y.  33  ;  Keener  Quasi-Contr.  403. 

3  Keener  Quasi-Contr.  408,  citing  and  discussing  Churchill  v.  Holt, 
127  Mass.  165  ;  Armstrong  County  v.  Clarion  County,  66  Fa.  St.  218  ; 
Wooley  ?'.  Batte,  2  C.  and  P.    41?  ;  Bailey  v.  Bussing,  28  Conn.  455. 

4  I27  Mass.  165.  5  Leake  Contr  82,  and  cases  cited. 


142  A   REVIEW   IN   LAW   AND    EQUITY. 

straint  for  the  debt  of  another,  pays  the  debt  to  secure 
the  release  of  the  goods,  and  is  then  permitted  to 
recover  the  amount  paid  from  the  debtor  primarily 
liable  ;  as  if  a  factor  should  =o  deal  with  the  goods  of 
his  principal  as  to  give  d  lien  on  them  to  a  third 
party,  and  the  principal  should  satisfy  the  lien  in  order 
to  recover  possession.1 

II.  Quasi-contractual  obligations  arising  when 
money  has  been  received  by  one  person  to  the  use 
of  another. 

This  is  to  be  understood  simply  as  meaning  that  ob- 
ligations of  this  class  can  be  enforced  by  the  plaintiff 
in  an  action  of  assumpsit  for  money  received  by  the  de- 
fendant to  the  use  of  the  plaintiff. 

The  general  principle  which  gives  rise  to  these  obliga- 
tions is  that  when  money  has  been  received  by  a  person 
under  circumstances  or  upon  occasions  that  require,  upon 
principles  of  justice  and  equity,  that  it  should  be  paid 
over  to  another,  a  debt  may  be  implied  in  law,  without 
any  actual  agreement  of  the  parties  to  that  effect.2 

This  doctrine  is  invoked  most  frequently  in  four  in- 
stances. 

i .  When  one  person  has  paid  money  to  another  for  a 
consideration  wJiich  wholly  fails ;  the  money  thus  paid 
can  generally  be  recovered  in  an  action  for  money  had 
and  received.3 

Illustrations. — The  recovery  of  the  purchase-money 
when  goods  sold  have  failed  to  be  delivered  by  the 
vendor  \4  the  recovery  of  money  paid  by  the  assignee 
of  a  void  bond  ;5  the  recovery  of  money  paid  as  a  de- 

1  Leake  Contr.  82. 

8  Id  88  ;  Addis.  Contr.  29  ;  see  Gorman  v.  Carroll,  7  Allen  199  ; 
Jamison  v.  Moore,  43  Miss.  598  ;  Allen  v.  Burlington,  45  Vt.  202  ;  see 
also  Lawson  Contr.  §  49  and  cases  cited. 

3  Leake  Contr.  105  ;  Lawson  Contr.  §  50 ;  Milliard  Contr.  §  13. 

4  Devaux  v.  Conolly,  8  C.  B.  640. 

5  Flynn  v.  Allen,  57  Pa.  St.  482. 


QUASI-CONTRACTS.  143 

posit  upon  application  for  shares  in  a  proposed  com- 
pany which  is  afterwards  abandoned  without  any  al- 
lotment of  shares ;'  the  recovery  of  money  paid  on 
deposit  by  a  purchaser  of  land  when  the  vendor  fails  to 
complete  the  bargain  by  reason  of  defect  of  title  ;a  the 
recovery  of  the  premium  paid  on  an  insurance  policy 
when  the  risk  insured  against  was  not  incurred.3 

The  following  principles  are  to  be  observed  by  way 
of  limitation  upon  the  general  right  of  recovery  in  this 
instance  : 

(a).  When  the  failure  of  the  consideration  is  caused 
by  the  plaintiff's  own  default,  there  can  be  no  re- 
cover}- ;  as  when  a  purchaser  of  land,  after  making  a 
deposit,  refuses  to  complete  the  contract.4 

(#).  There  must  be  complete  and  entire  failure  of  con- 
sideration, if  the  consideration  be  indivisible,  in  order 
to  maintain  an  action  for  money  received.  If,  how- 
ever, the  consideration  be  divisible,  and  the  price  ap- 
portionable  accordingly,  there  may  be  a  recovery  of 
an  apportionate  part  of  the  price  upon  a  partial  failure 
of  the  consideration.6 

(c).  If  the  stipulated  consideration  has  been  received, 
the  fact  that  it  was  or  has  become  valueless  affords  no 
ground  for  recovery.' 

(d}.  When  the  consideration  has  been  partially  per- 
formed, and  further  performance  has  become  impossible, 
a  plaintiff  who  has  paid  out  money  under  the  contract 
cannot  recover.7 

1  Leake  Contr.  105,  and  cases  cited. 

s  Id.  107,  and  cases  cited  ;  Pipkin  v.  James,  I  Humph.  325. 

3  Stevenson  v.  Snow,  3  Burr.  1240. 

4  Leake  Contr.  no,  and  cases  cited. 

5  Id.  no,  H2,  and  cases  cited. 

6  See   Taylors.  Hare,  i  B.    and  P.  N.  R.    260;  Begbie   v.   Phos- 
phate Co.,  L.  R.  12  B.  D.  679;  Schwazenbach  v.  Odorless  Co.,  65 
Md.  34. 

1  Leake  Contr.  in,  and  cases  cited. 


144  A    REVIEW   IN   LAW   AND   EQUITY. 

2.  When  money  has  been  paid  under  a  mistake  of  fact 
which  is  of  such  a  character  as  to  have  produced  a  sup- 
posed liability  to  pay  the  money  which  in  reality  did  not 
exist;1  and  this,  though  the  plaintiff  had  means  of  knowl- 
edge, of  which  he  did  not  avail  himself,2  and  though 
he  had  once  known  the  fact,  forgetfulness  of  which  had 
led  to  the  mistaken  payment.3 

Illustrations. — The  recovery  of  money  paid  for 
goods  sold,  upon  a  mistake  in  the  weight  or  measure- 
ment of  the  goods,  or  in  the  calculation  of  the  price  ;  * 
the  recovery  of  money  paid  to  his  lessor  by  a  tenant 
who  was  afterwards  ejected  and  compelled  to  pay 
rent  to  the  real  owner  for  the  same  time  ;5  the  recovery 
of  money  by  a  grantee  from  a  person  who  had  col- 
lected rents  for  the  grantor,  and  who  continued  to  do  so 
after  the  conveyance  and  in  ignorance  of  it.6 

The  following  principles  are  to  be  observed  by  way 
of  limitation  upon  the  general  right  of  recovery  in  this 
instance : 

(a).  If  a  payment  is  made  under  a  mistake  of  fact 
which  creates  no  supposed  legal  obligation,  there  can  be 
no  recovery  ;  as  in  case  of  a  gift,  made  under  mistake, 
but  under  no  supposed  liability.7 

(b}.  If  a  payment  be  made  as  the  result  of  a  mistake 
of  a  third  party,  such  as  an  arbitrator,  or  a  valuer,  there 
can  in  general  be  no  recovery.8 

1  Leake  Contr.  101  ;  Frontier  Bank  z:  Morse,  22  Me.  88  ;  Appleton 
Bank   v.   McGilvray,  4  Gray  518  ;   Waite  v.   Leggett,   8  Cow.   195  ; 
Kingston  Bank  r.  Eltinge,  40  N.  Y.  391. 

2  Kelly  v.  Solari,  9  M.  and  W.  54  ;  Kingston  v.  Eltinge,  40  N.  Y.  391. 

3  Id. 

4  Cox  v.   Prentice,  3  W.  and  S.  344  ;  Wheadon  v.  Olds,  20  Wend. 
175- 

8  Newsome  v.  Graham,  6  B.  and  C.  71. 
6  Hills  v.  Bearse,  9  Allen  403. 

1  Wilson  z:  Thornbury,  L.  R.  10  Ch.  239  ;  Leake  Contr.  103  ; 
Keener  Quasi-Contr.  26. 

8  Leake  Contr.  103  ;  Freeman  v.  Jeffries,  L.  R.  4  Ex.  189. 


QUASI-CONTRACTS.  145 

(c).  In  order  to  recover  money  paid  under  a  mistake, 
there  must  be  a  failure  of  consideration.  If  the  plain- 
tiff has  received  an  equivalent  for  the  money  paid,  there 
can  be  no  recovery.1 

(d).  The  retention  of  the  money  by  the  defendant 
must  be  against  good  conscience  in  order  to  sustain  a 
recovery.  Money  paid  in  ignorance  of  the  fact  that  the 
claim  was  barred  by  the  statute  of  limitations  cannot 
be  recovered.2 

(e).  In  order  to  recover  money  paid  under  mistake, 
notice  of  the  mistake  must  be  given  to  and  demand made 
of  the  defendant,  if  he  is  unaware  of  the  mistake.9 

A  mistake  of  law  will  not  afford  ground  for  re- 
covery, however  much  against  good  conscience  the  re- 
tention of  the  money  by  the  defendant  may  be.* 

A  mistake  of  law  occurs  when  the  party  knows  the 
facts,  but  does  not  know  the  legal  consequences? 

3.  When  one  person  has  wrongfully  or  fraudulently  pos- 
sessed himself  of  money,  or  of  goods  which  he  has  turned 
into  money,  the  rightful  owner  may  waive  the  wrong  and 
recover  in  an  action  for  money  had  and  received? 

To  waive  the  tort  is  merely  to  choose  the  remedy  in 
contract  in  preference  to  the  remedy  in  tort.1 

Illustrations. — The  recovery   of  money  which  the 

1  Keener  Quasi-Contr.  34,  citing  Merchants'  Bank  v.  National 
Bank,  139  Mass.  513  ;  Illinois  Trust,  etc.,  Bank  v.  Felsenthal,  26  111. 
624  ;  United  States  v.  Badeau,  130  U.  S.  439. 

8  Keener  Quasi-Contr.  43  ;  Moses  v.  Macferlan,  2  Burr.  1005. 

3  Leake   Contr.  104 ;  Kelly   v.    Solari,   9  M.  and  W.  58  ;  Keener 
Quasi-Contr.  141  ;  there  is,  however,  some  conflict  in  the  American 
cases  ;  see  Leather  Manufacturers'  Bank  v.  Merchants'  Bank,  128  U. 
S.  26,  and  cases  cited. 

4  Leake  Contr.  104  ;  for  discussion  of  cases  see  Keener  Quasi-Contr. 
85  et  seq. 

5  Mowatt  v.  Wright,  i  Wend.  355. 

6  Leake  Contr.  89  ;  Cooley  Torts  *g3  ;  Shaw  v.  Coffin,  58  Me.  254  ; 
Gilmore  v.  Wilbur,  12  Pick.  120  ;  Lawson  Contr.  §  44,  and  cases  cited. 

1  Cooper  v.  Cooper,  147  Mass.  370. 


146  A   REVIEW   IN   LAW   AND   EQUITY. 

plaintiff  had  been  induced  to  pay  by  false  pretences  / 
the  recovery  of  money  paid  under  an  agreement  which 
the  plaintiff  could  avoid  on  the  ground  of  fraud /"  the 
recovery  of  money  received  by  a  tort-feasor  who  has 
wrongfully  obtained 'the  plaintift's  goods  and  converted 
them  into  money  ;3  the  recovery  of  the  proceeds  of 
a  sale  from  a  sheriff  who  had  sold  the  plaintiff's 
goods  on  an  execution  issued  against  another;4  the 
recovery  of  the  proceeds  of  the  sale  of  land  obtained 
from  the  owner  by  wrong  or  fraud.6 

The  following  principles  are  to  be  observed  by  way 
of  limitation  upon  the  general  right  of  recovery  in  this 
instance : 

(a).  The  tortious  act  of  the  defendant  must  result  in 
his  unjust  enrichment,  in  order  that  the  plaintiff  may 
recover  in  an  action  of  assumpsit.  Mere  impoverish- 
ment on  the  plaintiff's  part  is  not  enough.8 

(£).  Money  wrongfully  obtained  and  transferred  to  a 
third  party  without  notice  of  the  wrong  cannot  be  re- 
covered from  such  third  party; 7  otherwise,  with  goods.8 

(c).  The  defendant  gains  the  right  of  set-off,  when 
the  tort  is  waived  and  an  action  of  contract  brought, 
which  he  would  not  otherwise  have  had.' 

1  Holt  -v.  Ely,  i  E.  and  B.  795  ;  Martin  v.  Morgan,  i  B.  and  B.  289. 

2  Street  v.  Blay,  2  B.  and  Ad.  456  ;  Judge  v.  Stone,  44  N.  H.  593. 

3  Rodgers  v.  Maw,  15  M.  and  W.  448  ;  Lamine  v.  Dorrell,  2  L.  Raym. 
1216  ;  Lawson  Contr.  §  43,  and  cases  cited. 

4  Oughton  v.  Seppings,  i  B.  and  Ad.  241  ;  see  Harris  v.  Miner,  28 
111.  135- 

5  Morgan  v.  Elford,  L.  R.  4  C.  D.  352  ;  Ely  v.  Wolcott,  4  Allen  506. 

6  Keener  Quasi-Contr.  160  ;  National  Trust  Co.  v.  Gleason,  77  N. 
Y.  400. 

7  Foster  z>.  Green,  7  H.  and  N.  88 1  ;  Bayne  v.  United  States,  93 
U.  S.  642  ;  Atlantic  Cotton  Mills  v.  Indian  Orchard  Mills,  147  Mass. 
268  ;  State  Bank  v.  United  States  Bank,  114  U.  S.  401  ;  Thacher  v. 
Pray,  113  Mass.  291. 

8  Glyn  v.  Baker,  13  East  509. 

•     •  Thorpe  v.  Thorpe,  3  B.  and  Ad.  580. 


QUASI-CONTRACTS.  147 

(d).  The  measure  of  recovery  in  each  case  is  the 
amount  whose  retention  by  the  defendant  would  be 
against  good  conscience ;  not  the  injury  to  the  plaintiff, 
nor  the  amount  which  he  may  have  paid.1 

4.  When  a  person  has  paid  money  under  unlawful 
compulsion  or  extortion  of  any  kind,  it  can  generally  be 
recovered  in  an  action  for  money  had  and  received? 

This  principle  is  invoked  most  frequently  in  three 
cases. 

(a).  To  recover  money  paid  under  duress  of  the  per- 
son, as  imprisonment,  threats  of  imprisonment,'  or  of 
personal  injury.4 

(b).  To  recover  money  paid  to  remove  duress  of 
goods,  or  other  property, — i.  e.,  to  procure  possession 
of  property  wrongfully  taken  or  detained,5  or  to  pro- 
tect the  possession  from  threatened  injury.' 

(c).  To  recover  money  extorted  by  a  person  as  the 
consideration  for  doing  what  he  is  legally  bound  to  do 
without  such  payment,  or  without  such  excessive  pay- 
ment ; '  as  when  a  carrier  refuses  to  carry  goods  except 
on  payment  of  an  excessive  charge  ;8  or  when  excessive 
or  illegal  fees  are  charged  by  an  official  for  performing 
the  duties  of  his  office.9 

1  Keener  Quasi-Contr.  183  ;  Western  Assurance  Co.  v.  Towle,  65 
Wis.  247. 

8  Leake  Contr.  95. 

3  Harmon  v,  Harmon,  61  Me.  227  ;  Sartwell  v.  Horton,  28  Vt.  370. 

4  Richardson  v.  Duncan,  3  N.  H.  508  ;  Harvey  v.  Boyd,  42  111.  336. 

5  Carew  v.  Rutherford,  106  Mass,  r;  Peyser  v.  Mayor,  70  N.  Y. 
501;  Shaw  v.  Woodcock,  7  B.  and  C.  84;  Atlee  v.  Backhouse,  3  M. 
and  W.  650. 

6  Heckman  v.  Schwartz,  64  Wis.  48  ;  Cobb  v.  Charter,  32  Conn.  358; 
Leake  Contr.  96. 

'  Id.  99. 

8  Ashmole  f.Wainwright,  2  Q.  B.  837;  Clinton  v.  Strong,g  Johns.369; 
Beckwith  v.  Frisbie,  32  Vt.  559;  Railroad  Co.  v.  Steiner,  61  Ala.  559. 

9  Morgan  v.  Palmer,  2  B.    and  C.  729;  Walker  v.  Ham,  2  N.    H. 
238;  Robinson  v.  Ezell,  72  N.  C.  231  ;  Dewz/.  Parsons,  2  B.  and  Aid. 
563. 


148  A   REVIEW  IN   LAW  AND   EQUITY. 

The  following  principles  are  to  be  observed  by  way 
of  limitation  upon  the  general  right  of  recovery  in  this 
instance : 

(a).  Money  paid  in  compromise  of  a  question  of  right 
to  hold  goods  and  not  in  discharge  of  a  demand  which 
is  enforced  by  their  detention,  cannot  be  recovered.1 

(b\  Money  paid  under  compulsion  of  legal  process 
cannot  be  recovered,  so  long  as  the  process  stands?  If 
set  aside  on  application  to  the  court,  recovery  may  be 
had.3 

(c}.  Money  paid  to  prevent  a  threatened  sale  of  real 
property  cannot  be  recovered,  unless  a  cloud  on  the 
title  would  result  from  the  sale ;  *  otherwise,  with 
money  paid  to  prevent  the  sale  of  personal  property,  the 
reason  of  the  distinction  being  that  in  the  case  of  the 
latter  the  officer  takes  possession,  while  in  a  sale  of  real 
property  the  purchaser  is  left  to  enforce  such  rights  as 
he  has  acquired.6 

(d).  Money  paid  after  the  compulsion  or  duress  has 
ceased  cannot  be  recovered  :  as  in  the  case  of  the  vol- 
untary payment  of  a  note  which  was  given  under  com- 
pulsion.8 

(e).  There  can  be  no  recovery  of  a  payment  which 
should  have  been  made,  though  made  under  compulsion 
or  duress.' 

1  Leake  Contr.  97;  Atlee  v.  Backhouse,  3  M.  and  W.  633. 

2  Marriott  v.  Hampton,  7  T.  R.  269;  2  Smith's  L.  C.  356,  5th  ed.; 
Stevens  v.  Howe,  127  Mass.  164;  Corbet  v.  Evans,  25  Pa.  St.  310  ; 
Kobler  v.  Wells,  26  Cal.  606. 

3  De  Medina  v.  Grove,  10  Q.  B.  152;  Lawson  Contr.  §  47,  and  cases 
cited. 

4  Keener  Quasi-Contr.  424,  and  cases  cited.  5  Id. 
6  Id.  439;  Schultz  v.  Culbertson,  46  Wis.  313. 

1  Diller  v.  Johnson,  27  Tex.  47. 


CHAPTER   XXVI. 

TORTS. 

Wrongs  are  of  two  kinds,  public  and  private.  Pub- 
lic wrongs  are  called  crimes.  Private  wrongs  are  called 
torts.  Sometimes  wrongs  are  of  both  a  public  and 
private  character,  as  assault  and  battery,  or  certain 
kinds  of  libel ;  but  when  considered  from  the  standpoint 
of  injury  to  the  individual,  they  are  called  torts.1 

Torts  differ  from  contracts  in  three  particulars.8 

1.  Joint  wrong-doers,  or  tort-feasors,  are  severally  lia- 
ble for  the  injury  done.     There  is  no  plea  in  abatement 
for  non-joinder,  and  no  right  of  contribution  from  each 
other.3 

2.  The  death  of  either  party  to  a  tort  destroys  all  right 
of  action  /  while,  as  a  rule,  the  personal  representatives, 
and  often  the  heirs-at-law,  of  contracting  parties,  are 
bound  by  the  contracts  entered  into  by  the  deceased. 

3.  Persons  who  are  not  liable  on  their  contracts,  as  in- 
fants or  insane  persons,  are  liable  for  their  torts. 

Torts  differ  from  crimes,  aside  from  being  regarded 
as  private  wrongs,  in  that  in  the  former  the  wrong- 
doer's intent,  as  a  rule,  is  immaterial,  while  in  the  latter 
criminal  intent  must  be  alleged  and  proved.* 

DAMAGES. 

In  regard  to  damages,  the  law  uses  two  words, 
damnum  and  infuria.  Damnum  is  actual  damage  in- 

1  i  Hill.  Torts  i,  60.  *  Id.  2. 

3  This   is  true  only  of  tort-feasors  who  knowingly  engage   in  the 
wrongful  act.     See  Keener  Quasi-Contracts  408. 

4  See  local  Statutes  for  modification  of  this  rule. 

5  Cooley  Torts  *84. 

(149) 


150  A  REVIEW   IN   LAW  AND  EQUITY. 

curred  by  a  person,  an  actual  injury  to  his  property, 
person,  or  rights.  Injuria  is  a  legal  injury,  an  injury  for 
which  the  law  will  give  a  remedy? 

In  all  torts  there  must  be  the  infringement  of  a  right, 
or  the  violation  of  a  duty.  Hence  there  may  be 
damnum  without  injuria,  and  injuria  without  damnum. 
Thus,  if  A  erects  a  building  which  conceals  the  shop  of 
B  from  view,  the  latter  might  suffer  great  actual  damage 
(damnum),  but  there  would  be  no  injury  for  which  the 
law  would  give  redress.  This  would  be  a  case  of 
damnum  absque  injuria  (damage  without  legal  injury). 
On  the  other  hand,  if  A  should  walk  over  the  land  of  B, 
no  permission  either  express  or  implied  being  given, 
he  would  be  liable  in  an  action  of  trespass  by  B,  for 
though  B's  land  may  have  suffered  no  actual  injury 
(damnum),  yet  there  is  a  legal  injury  (injuria)  for  which 
he  can  recover  nominal  damages.  This  would  be  a  case 
of  injuria  sine  damno  (legal  injury  without  actual 
damage). 

In  certain  cases,  as  when  the  wrong-doer's  motive  is 
vicious  or  malicious,  the  law  permits  the  injured  party 
to  recover,  in  addition  to  his  actual  damages,  vindictive 
{punitive,  exemplary)  damages, — i.  e.,  damages  which  are 
designed  not  to  be  so  much  the  reparation  of  the  injury 
as  the  infliction  of  a  penalty  upon  the  wrong-doer.2 

To  recover  damages  for  a  tort,  the  tort  must  have 
been  the  immediate,  not  the  remote  cause  6f  the  injury. 
If  an  injury  has  resulted  from  some  wrongful  act,  but 
through  the  medium  of  some  intervening  cause  or 
agency,  the  law  attributes  the  injury  to  this  latter 
cause,  and  does  not  trace  it  back  to  the  remote  cause.8 
Thus,  in  an  action  against  a  carrier  for  the  loss  of 

1  Bouv.  Law  Diet.,  sub.  Damnum  and  Injuria;   i  Hill.  Torts  76; 
Cooley  Tons  *62,  *8i  ;  i  Suth.  Dam.  3. 
5  Wood's  Mayne  Dam.  61  n.  (ist  Am.  Ed.). 
3  Cooley  Torts  *68. 


TORTS.  1 5 1 

goods  by  a  flood,  in  which  it  was  shown  that  had  it 
not  been  for  the  lameness  of  a  horse  employed  by  the 
carrier,  the  goods  would  not  have  been  in  the  way  of 
the  flood,  it  was  held  that  the  lameness  of  the  horse 
was  the  remote  and  not  the  immediate  or  proximate 
cause  of  the  loss,  and  that  the  carrier  was  not  liable.1 

CLASSES   OF  TORTS. 

Torts  may  be  divided  into  three  classes,  torts  to  the 
person,  torts  to  property,  torts  to  reputation, 

I.  The  chief  torts  to  the  person  are  assault  and 
battery,  false  imprisonment,  injuries  arising  from 
dangerous  animals. 

1.  An  assault  is  an  attempt,  with  unlawful  force,  to 
inflict    bodily   injury   on    another,   accompanied   with 
ability  to  give  effect  to  the  attempt,  if  not  prevented. 

A  battery  is  an  assault  which  succeeds  in  its  pur- 
pose. 

There  must  always  be  an  intent,  express  or  implied, 
to  constitute  a  battery.  Assent  to  the  commission  of 
a  battery  is  no  defence  to  an  action  for  injury  sus- 
tained.3 

A  battery  may  be  justified  on  one  of  three  grounds.1 

(a).  As  a  proper  mode  of  correction,  as  in  the  punish- 
ment of  a  child  by  a  teacher  or  parent. 

(b).  As  a  means  of  preserving  the  peace. 

(c).  As  a  necessary  means  of  defence  of  the  person  of 
oneself,  or  of  the  person  of  husband,  wife,  parent, 
child,  master,  servant,  or  as  a  means  of  defence  of 
property. 

2.  False  imprisonment  is  any  unlawful  restraint  of 
a  man's  liberty,  either  by  force  or  under  the  threat  of 
force.4     If  a  person  is  arrested   under  process,  it  must 
have  been  issued  by  a  court  or  officer  having  authority 

1  Morrison  v.  Davis,  20  Pa.  St.  171.          *  Cooley  Torts  *i6o-*i64. 
3  Id.  *i6s  etseq.  ;  Big.  Torts  105,  108.     4  Cooley  Torts  *i6g. 


152  A   REVIEW   IN   LAW   AND   EQUITY. 

to  issue  it,  and  there  must  be  nothing  on  the  face  of 
the  process  informing  the  officer  executing  it  that  in 
the  particular  case  there  was  no  authority  for  issuing 
it ; *  otherwise  the  imprisonment  is  illegal. 

An  arrest  without  a  warrant  may  be  lawfully  made 
in  two  cases.* 

(i).  When  a  felony  has  been  committed,  and  the 
party  making  the  arrest  has  sufficient  grounds  for  sus- 
pecting the  person  arrested  to  be  the  felon. 

(2).  In  forcible  breaches  of  the  peace,  as  in  affrays 
and  riots. 

3.  As  a  rule,  an  owner  is  liable  for  all  injuries 
inflicted  by  a  dangerous  animal  upon  innocent  persons 
who  are  guilty  of  no  contributory  negligence,  if  he 
knows,  or  might  reasonably  have  been  supposed  to 
know,  of  the  dangerous  character  of  the  animal.3 
Owners  are  liable  for  injury  done  to  the  property  of 
others  by  their  animals,  whether  dangerous  or  other- 
wise. 

The  use  of  fierce  dogs  to  defend  the  owner's  premises 
may,  in  some  circumstances,  be  the  employment  of 
unlawful  force.  The  taking  of  life  to  prevent  a  mere 
trespass  is  never  lawful,  and  the  employment  of  a  dog, 
known  to  be  likely  to  inflict  extreme  injury,  against 
trespassers,  would  be  unlawful,  would  make  the  owner 
liable  for  injuries  inflicted  by  the  animal,  and,  in  case 
death  resulted,  might,  in  some  cases,  make  him  guilty 
of  manslaughter.4 

II.  The  chief  torts  to  property  are  trespass,  waste, 
nuisance,  conversion,  Injuries  to  incorporeal  rights, 
seduction. 

i.  A  trespass  is  an  unlawful  act,  committed  with 
violence,  actual  or  implied,  to  the  property,  person,  or 

1  Cooley  Torts  *i;2.  2  Id.  *I75 

3  Id.  *342  et  seq.  ;  i  Hill.  Torts  592  ;  Big.  Torts  248. 
*  See  Cooley  Torts  *i68,  169. 


TORTS.  153 

rights  of  another.1  In  this  connection  only  that  por- 
tion of  the  definition  which  refers  to  property  applies. 
Trespass  may  be  committed  upon  real  or  personal 
property  by  a  person  or  his  agent,  or  by  animals.  The 
only  important  exception  to  the  rule  that  an  owner  is 
liable  for  trespasses  committed  by  his  animals,  is  in  the 
case  of  animals  which  are  being  driven  along  a  highway. 
Here,  if  due  care  is  exercised  in  their  driving,  and  they 
enter  upon  the  property  of  another,  their  owner  is  not 
liable,  if  they  are  removed  in  a  reasonable  time. 

Any  person  who  is  in  actual  possession  of  property 
may  maintain  an  action  of  trespass.8 

2.  Waste  is  an  injury  done,  or  permitted  to  be  done, 
to   corporeal   hereditaments,   by   the    tenant,   to   the 
prejudice  of  the  heir,  the  remainder-man,  or  the  rever- 
sioner."     It  differs  from  trespass  in  that  it  is  committed 
by  a  person  lawfully  in  possession.     Waste  is  of  two 
kinds. 

(a).  Permissive,  or  the  neglect  to  do  that  which  will 
prevent  injury,  as  to  let  a  house  go  to  decay  for  want 
of  repairs. 

(b).  Voluntary,  or  the  commission  of  some  destruc- 
tive act.  The  most  ordinary  forms  of  voluntary  waste 
are  cutting  off  timber,  opening  and  working  mines,  and 
converting  arable  into  pasture  land.4 

3.  A  nuisance  is  a  wrong  arising  from  unreasonable 
or  unlawful  use,  by  a  person,  of  his  own  property,  or 
from  his  improper  or  unlawful  personal  conduct,  work- 
ing an  obstruction  of  or  to  the  right  of  another  or  01 
the  public,  and  producing  such  material  annoyance,  in- 
convenience,  discomfort,   and  hurt  .that  the  law  will 
presume  a  consequent  injury.6 

Nuisances  are  of  three  kinds.' 

1  Bouv.  Law  Diet.,  sub.  Trespass.  9  Cooley  Torts  *34i. 

3  Bouv.  Law  Diet.,  sub.  Waste.  4  Cooley  Torts  *333- 

5  i  Wood  Nuis.  i.  6  Id-  34- 


154  A  REVIEW  IN  LAW  AND  EQUITY. 

(a).  Private,  or  those  committed  to  the  hurt  of  the 
lands,  tenements,  and  hereditaments  of  another,  such 
as  filthy  percolations  from  the  premises  of  one  man  on 
those  of  another.  They  produce  damage  to  but  one  or 
a  few  persons. 

(£).  Public  or  common,  or  those  which  produce  an- 
noyance or  hurt  to  the  whole  community  in  general, 
such  as  keeping  a  disorderly  house. 

(c\  Mixed,  or  those  which  affect  the  community  as 
a  whole,  and  which  also  work  particular  damage  to 
some  individual  or  class,  such  as  a  ditch  unlawfully  dug 
across  a  highway,  into  which  a  person  falls.  The  ditch 
is  a  public  nuisance,  and,  to  the  party  falling  into  it,  a 
private  nuisance.  The  person  injured  can  maintain  an 
action  against  the  party  who  dug  the  ditch,  while  the 
remedy  for  the  public  is  by  complaint  or  indictment. 

Carrying  on  an  offensive  trade  or  occupation  in  a  re- 
mote locality  for  a  long  time,  does  not  entitle  the 
owner  to  continue  it  when  the  locality  has  become 
populous.  No  person  can  gain  a  right  to  maintain  a 
public  nuisance  by  prescription* 

4.  Conversion  is  the  appropriation  by  one  person 
of  personal  property  belonging  to  another,  to  his 
own  personal  use.  •  In  all  actions  brought  for  con- 
version, there  is  an  assumption  that  the  original  tak- 
ing of  the  goods  may  have  been  lawful,  the  wrong 
consisting  in  the  continuing  in  possession  and  the  re- 
fusal to  surrender  the  goods  to  their  real  owner.  In 
this  respect  conversion  differs  from  trespass,  in  which 
the  original  taking  was  unlawful.1 

Conversion  is  of  two  kinds.* 

(a).  Direct,  or  when  a  person  actually  appropriates  to 
his  own  use  or  enjoyment  the  property  of  another,  or 
destroys  or  alters  its  nature. 

1  i  Wood  Nuis.  40,  105.  *  Cooley  Torts  '442. 

*  Bouv.  Law  Diet.,  sub.  Conversion. 


TORTS.  155 

(b).  Constructive,  or  when  a  person  does  such  acts  in 
regard  to  the  personal  property  of  another  as  amount, 
in  view  of  the  law,  to  an  appropriation  of  the  property 
to  himself.  Thus,  an  original  unlawful  taking  is,  as  a 
rule,  conclusive  evidence  of  actual  conversion. 

5.  The  chief  injuries  to  incorporeal  rights  are  :' 
(a).  Infringement  of  patents,  copyrights,   and   trade- 
marks. 

(b).  Injuries  to  the  good-will  of  a  business. 

(c).  Injuries  to  rights  in  easements,  as  by  barricading 
a  right  of  way,  causing  land  to  fall  by  excavations, 
interfering  with  the  right  of  support  in  a  party  wall, 
etc. 

6.  Seduction  is  the  enticing  of  a  woman  to  unlawful 
sexual  intercourse.8     The  husband  has  a  right  of  action 
against  the  seducer  of  his  wife,  and  the  parent  for  the 
seduction  of  a  child,  provided  that  he  is  entitled  to  her 
services,  loss  of  service  being  the  ground  of  the  action. 
When  loss  of  service  has  been  established,  vindictive 
damages  may  be  given.* 

III.  Torts  to  reputation  are  of  three  kinds. 
Slander,  libel,  and  malicious  prosecution. 

i.  Slander  consists  of  words  falsely  spoken,  which  are 
injurious  to  the  reputation  of  another.4  It  is  defama- 
tion addressed  to  the  ear.  In  order  to  be  actionable,  it 
must  be  published,  i.  e.,  heard  by  some  one.* 

Actionable  words  are  of  two  kinds.8 

(a).  Those  which  are  actionable  per  se, — /'.  e.,  words 
for  which  an  action  will  lie  without  proof  of  actual  dam- 
age, damage  being  inferred  from  the  nature  of  the 
publication.  There  are  four  classes  of  words  actionable 
per  se. 

1  Cooley  Torts  '351  et  seq.  -*  Bouv.  Law  Diet.,  sub.  Seduction. 

3  Cooley  Torts  *228,  *234- 

4  Odger  Libel  &  S.  *7  ;  see  Townshend  Libel  &  S.  4,  note. 

5  Cooley  Torts  *ig3.  *  Id.  *IQ4  et  seq. 


156  A   REVIEW   IN   LAW   AND   EQUITY. 

(i).  Those  imputing  the  commission  of  an  offence  in- 
volving moral  turpitude}  or  cognizable  by  a  criminal 
prosecution  which  may  result  in  a  disgraceful  punish- 
ment. 

(2).  Those  imputing  a  contagious  disease,  involving,  if 
known,  exclusion  from  society,  as  to  call  a  man  a 
leper.2 

(3).  Words  imputing  unjitness  for  or  dishonor  in  office, 
as  a  charge  that  a  postmaster  has  robbed  the  mail.3 

(4).  Words  imputing  want  of  integrity  or  capacity  in 
business,  as  to  accuse  a  physician  of  lack  of  ability.4 

(b}.  Words  which  are  actionable  only  on  account  of 
some  actual  consequential  damage  which  must  be 
proved.6 

A  person  who  repeats  a  slander  is  equally  liable 
with  the  party  originating  it.  A  statement  that  the 
person  repeating  a  slander  heard  it  from  another  is  no 
defence  to  an  action." 

2.  A  libel  is  a  censorious  or  ridiculous  writing,  picture, 
or  sign  made  with  a  malicious  or  mischievous  intent 
towards  governments,  magistrates,  or  individuals.7  It 
is  defamation  addressed  to  the  eye. 

Libels  are  divided  into  two  classes.' 

(a).  Those  actionable  per  se. 

(b}.  Those  actionable  on  proof  of  special  damage. 

The  first  class  embraces  the  four  cases  in  which  slan- 
der is  actionable  per  se,  and  in  addition  any  libel  whose 
tendency  is  to  render  a  person  contemptible  or  ridicu- 

1  Brooker  v.  Coffin,  5  Johns.  188  ;  Miller  v.  Parish,  8  Pick.  385. 
8  \Villiams  v.  Holdredge,  22  Barb.  398. 

3  Craig  -v.  Brown,  5  Blackf.  44. 

4  Camp  v.  Martin,  23  Conn.  86  ;  Orr  v.  Skofield,  56  Me.  483. 

6  Oakley  v.  Farrington,  i  Johns.  Cas.  129;  Odiorne  v.  Bacon,  6 
Cush.  185. 

6  Cooley  Torts  *22o. 

1  Bouv.  Law  Diet.,  sub.  Libel,  and  cases  cited. 

8  Cooley  Torts  *2O5. 


TORTS.  157 

lous  in  public  estimation,  or  to  expose  him  to  public 
hatred  or  contempt,  or  to  hinder  virtuous  men  from 
associating  with  him.1 

A  civil  action  only  lies  for  slander,  but  libel  in  some 
cases  is  a  criminal  as  well  as  a  civil  offence,  and  may  be 
prosecuted  by  indictment.  Such  libels  are  those  whose 
tendency  is  to  disturb  the  public  peace  and  good  order 
of  society.  They  include  libels  which  are  actionable 
per  se,  and  some  others." 

To  sustain  an  action  for  either  slander  or  libel,  there 
must  be  malice. 

Malice  is  of  two  kinds.* 

(a).  Express,  or  that  which  is  shown  by  evidence  to 
actually  exist. 

(V).  Implied,  or  that  which  the  law,  from  the  facts, 
assumes  to  exist. 

In  cases  of  slander  and  libel  actionable  per  se,  malice 
is  presumed,  and  no  proof  of  its  existence  is  necessary.4 

The  truth  of  a  slander  or  libel  is  a  defence  to  a 
civil  action,  but,  as  a  rule,  it  is  not  a  defence  to  an  in- 
dictment for  libel,  the  public  injury  resulting  from  it 
not  being  affected  by  its  truth  or  falsity.* 

PRIVILEGED   COMMUNICATIONS. 

Under  certain  circumstances  persons  uttering  or 
publishing  words  which  would  otherwise  be  actionable, 
are  not  held  liable,  owing  to  the  communications  being 
regarded  as  privileged.  These  cases  are  divided  into 
two  classes." 

(a).  Cases  absolutely  privileged,  so  that  no  action  can 
be  maintained,  though  it  be  alleged  that  the  publica- 

1  Lindley  v.  Horton,  27  Conn.  58. 

*  3  Greenl.  Ev.  §  164  ;  Starkie  S.  and  L.  *I7O  ;  Townshend  L.  & 
S.  6.  / 

3  Cooley  Torts  *aog  ;  Townshend  S.  &  L.  66. 

4  Starkie  S.  &  L.  *2Q4.  5  Cooley  Torts  *2o7. 
6  Id.  *2 1 0  et  seq. 


158  A  REVIEW   IN  LAW  AND   EQUITY. 

tion  was  both  false  and  malicious.  The  chief  instances 
are: 

(i).  That  of  a  witness  testifying  in  court. 

(2).  That  of  a  legislator  speaking  in  the  legislative 
body  of  which  he  is  a  member. 

(3).  That  of  executive  and  judicial  officers,  as  regards 
their  official  utterances. 

(b).  Cases  conditionally  privileged  to  the  extent  that 
there  will  be  no  presumption  of  malice,  but  which  render 
the  party  liable,  if  both  falsehood  and  malice  are 
proved,  as  in  case  of  a  petition  to  the  appointing 
power  for  the  removal  of  an  official,  or  of  a  father  dis- 
cussing with  a  daughter  the  character  of  a  suitor. 

Belief  in  the  truth  of  a  slander  or  libel,  and  the 
most  careful  investigation  of  the  grounds  of  belief,  are 
no  defences  to  an  action,  though  they  may  prevent  the 
awarding  of  exemplary  damages.1 

3.  Malicious  prosecution  is  a  wanton  prosecution 
made  by  a  prosecutor  in  a  criminal  proceeding,  or  a 
plaintiff  in  a  civil  cause,  without  probable  cause,  by  a 
regular  process  or  proceeding,  which  the  facts  did  not 
warrant,  as  appears  by  the  result.2  To  maintain  an 
action  for  malicious  prosecution,  the  plaintiff  must 
prove  four  things.3 

(a).  That  a  suit  or  proceeding  had  been  begun  against 
him  by  or  at  the  instigation  of  the  defendant. 

(b).  Want  of  probable  cause  on  the  part  of  the 
defendant. 

(c).  Malice  on  the  part  of  the  defendant. 

(d\  The  termination  of  the  suit  or  proceeding  in  his 
favor. 

Probable  cause  means  the  existence  of  such  facts 
and  circumstances  as  would  excite  the  belief  in  a 

1  Townshend  S.  &  L.  324  ;  Odger  L.  &  S.  *3O2. 
*  Bouv.  Law  Diet.,  sub.  Malicious  Prosecution. 
3  Id.;  Cooley  Torts  *i8i  et  seq. 


TORTS.  1 59 

reasonable  man  that  the  plaintiff  was  guilty  of  the 
offence  charged,  or  that  there  was  ground  for  an  action 
against  him.  As  a  rule,  the  fact  that  the  defendant 
acted  under  the  advice  of  counsel  in  beginning  the 
proceeding  is  a  bar  to  an  action  for  malicious  prosecu- 
tion. The  burden  of  proof  is  on  the  plaintiff  to  show 
lack  of  probable  cause. 

Malice  must  be  proved  by  plaintiff.  It  may  be 
either  express  or  implied.  Malice  may  be  inferred 
from  lack  of  probable  cause,  but  lack  of  probable  cause 
cannot  be  inferred  from  malice. 

An  action  for  malicious  prosecution  will  lie  for  the 
institution  of  a  civil  suit,  though  the  exact  instances 
are  as  yet  uncertain.  It  can,  however,  be  maintained 
in  the  following  cases :  malicious  institution  of  pro- 
ceedings in  bankruptcy,  of  a  civil  suit  accompanied  by 
the  arrest  of  the  defendant,  of  proceedings  to  have  a 
person  declared  insane  or  for  the  appointment  of  a 
guardian. 


CHAPTER   XXVII. 

EQUITY. 

History. — Equity  is  that  system  of  jurisprudence 
which  affords  a  remedy  where  there  is  no  plain,  com- 
plete, and  adequate  remedy  at  common  law.1  In  Eng- 
land, its  administration  belongs  to  the  Court  of 
Chancery.  The  precise  origin  of  the  equitable  juris- 
diction of  this  court  is  uncertain,  but  the  following  ex- 
planation by  Lord  Hardwicke  seems  most  probable.3 
The  administration  of  justice  in  England  was  originally 
in  the  hands  of  the  Great  Court,  or  Council  of  the 
King,  which  acted  as  a  supreme  court  of  judicature. 
Afterwards  this  court  was  dissolved,  and  its  jurisdic- 
tion distributed  among  various  courts,  it  being  given 
principally  to  the  Court  of  Common  Pleas,  of  King's 
Bench,  of  the  Exchequer,  and  of  Chancery.  Now  all 
original  writs  under  the  great  seal  returnable  to  the 
common  -  law  courts  were  issued  from  Chancery. 
Many  petitions  being  presented  to  Parliament  and  the 
King  for  relief  which  could  not  be  obtained  by  a  resort 
to  common  law,  they  were,  as  a  rule,  referred  to  the 
Privy  Council  of  the  King,  which,  in  turn,  sent  them  to 
the  Chancellor,  who  was  to  decide  whether  the  com- 
mon-law actions  were  insufficient  for  the  case,  and  if 
they  were  found  to  be  so,  he  proceeded  to  give  relief 
through  the  Court  of  Chancery.  As  originally  the  grant- 
ing of  such  relief  rested  in  the  judgment  and  discretion 
of  the  King,  as  represented  by  the  Chancellor,  the  grant- 
ing of  it  was  said  to  be  a  matter  of  grace,  and  not  of  rig/it. 

1  i  Story  Eq.  Juris.  §  33. 

2  See  Id.  §  43;  Bisph.  Eq.  §  6  et  seq.\  Tied.  Eq.  §  4. 

(160) 


EQUITY.  l6l 

The  courts  of  common  law  were  unable  to  grant 
full  relief  in  every  case,  for  two  reasons.1 

1.  Because  of  the  limited  number  of  actions,  by  which  the 
rightsofallparties  could  not  be  protected  inevery  instance. 

2.  Because  of  the  closeness  with  which  the  common- 
law  judges  adhered  to  certain  ancient  and  very  technical 
decisions. 

Originally,  proceedings  at  equity  and  law  differed  in 
two  essential  points.2 

1.  In  equity,  there  was  no  oral  testimony.     All  testi- 
mony was  taken  by  depositions. 

2.  In  equity,  the  court  was  judge  both  of  law  and 
fact.     The  court  could,  in  its  discretion,  frame  an  issue 
of  fact  and  send  it  to  a  jury  for  determination,  but  the 
finding  of  the  jury  was  not  binding  on  the  judge. 

At  present,  the  essential  difference  between  courts 
of  equity  and  of  common  law  is  best  illustrated  by  the 
result  of  a  trial  in  each.  At  common  law  the  trial 
results  in  a  judgment  for  the  defendant,  or  for  damages 
for  the  plaintiff.  In  equity  the  trial  results  in  a  decree, 
in  which  all  the  rights  of  the  parties  are  adjusted.  A 
decree  may  be  partially  in  favor  of  the  plaintiff  and 
partially  for  the  defendant,  while  a  judgment  must  be 
wholly  in  favor  of  one  or  the  other. 

Courts  of  equity  now,  at  least,  follow  precedent  as 
closely  as  do  courts  of  law.  The  difference  between 
the  two  lies  in  the  form  of  the  proceedings  and  in 
principles.  Equity  is  enlightened  law,  untrammelled 
by  confinement  to  a  limited  number  of  actions. 

MAXIMS   OF   EQUITY. 

There  are  ten  maxims  of  equity,  of  chief  importance.1 
i.    Where  there  is  a  right,  there  is  a  remedy, — /'.  e.t 

1  Bisph.  Eq.  §  7;  see  also  Tied.  Eq.  §  3;  I  Pom.  Eq.  Juris.  §  16. 
5  Bisph.  Eq.  16 

3  See  Bisph.  Eq.  §  37  et  seq.  ;  i  Story  Eq.  Juris.  §  64  et  seq.  ;  Tied. 
Eq.  §  13  et  seq. 


l62  A   REVIEW   IN    LAW   AND   EQUITY. 

whenever  there  is  an   infringement  of  a  legal  right, 
equity  will  give  a  remedy,  if  there  is  none  at  common' 
law. 

2.  Equity  follows  the  law, — /.  e.,  the  principles  and 
rules  of  the  common  law  are  adopted  whenever  this 
can  consistently  be  done.     Thus  equitable  estates  are 
distributed  according  to  the  rules  for  the  distribution 
of  legal  estates. 

3.  When  the  equities  are  equal,  the  law  will  prevail, 
Thus  if  a  purchaser,  for  a  valuable  consideration,  with- 
out notice  of  an  equitable  right,  obtains  the  legal  estate 
at  the  time  of  the  purchase,  he  will  hold  as  against  the 
owner  of  the  equitable  title.     This  maxim  supported 
the  doctrine  of  "tacking"  in  mortgages.     (See  page 
42.) 

4.  Equity  favors  the  active,  not  the  passive.     This  is 
designed  to  encourage  diligence  and  punish  laches. 

5.  Equality  is  equity.     Thus,  if  A  conveys  an  estate 
in  trust  to  B,  to  be  conveyed  by  him  to  such  one  of 
four  persons  as  he  might  deem  best,  and  B  dies,  having 
failed   to   execute   this   power,  a  court  of  equity  will 
divide  the  property  equally  among  the  four. 

6.  He  who   comes  into  equity  must  come  with  clean 
hands.     Thus,  equity  will  not  enforce  a  gaming  trans- 
action. 

7.  He  who  seeks  equity  must  do  equity.     Thus,  if  a 
person  seeks  relief  from  a  usurious  contract,  he  must 
offer  to  return  the  borrowed  money,  together  with  law- 
ful interest. 

8.  Equity  considers  that  as  done   which   ought  to  be 
done.     Thus,  if  a  testator  has  provided  absolutely  that 
lands  be  sold  and  converted   into  money,  equity  will 
regard  the  change  as  having  taken  place  at  the  moment 
of    the   testator's   death,    and    the    property   will    be 
governed  by  the  rules  of  personal  property. 

9.  When  the  equities  are  equal,  priority  of  time  will 


EQUITY.  163 

prevail.     Thus,  if  A  has  an  equitable  estate  which  he 
mortgages  to  B,  and  subsequently  A  conveys  his  equi-  . 
table  estate  to  C,  C  will  take  the  equitable  title  subject 
to  the  mortgage  of  B. 

10.  Equity  acts  in  pcrsonam.  Hence  when  the  parties 
are  within  the  jurisdiction  of  a  court  of  equity,  it  will 
act,  though  the  property  in  question  may  be  outside 
the  jurisdiction.  Thus,  it  is  settled  that  a  decree  of 
foreclosure  and  a  sale  of  mortgaged  property  is  valid, 
though  a  part  of  the  property  is  without  the  jurisdic- 
tion of  the  court  ordering  the  sale.1 

JURISDICTION  OF  EQUITY. 

There  are  eleven  chief  heads  of  equitable  jurisdic- 
vtion  :  trusts,  mortgages?'assignments, 'accident,  mistake, 
fraud,  notice,  Estoppel, 'conversion,  adjustment/liens. 

I.  A  trust  is  an  equitable  right,  title,  or  interest 
which  a  person  has  in  property,  the  legal  title  to  which 
lies  in  another.2  The  person  holding  the  legal  title  is 
called  trie  trustee,  and  the  person  for  whose  benefit  it 
is  held  is  called  the  beneficiary  or  the  cestui  que  trust. 
Trusts  correspond  to  uses  as  they  existed  prior  to  the 
statute  of  uses.  (See  page  69.) 

Trusts  may  be  divided  into  two  classes. 

1.  Express  trusts,   or   those   which   are   created   in 
express  terms. 

2.  Implied  trusts,   or   those    which,   without   being 
expressed,  are  deducible  from  the  nature  of  the  trans- 
action, or  which  are  inferred  as  existing  by   equity, 
independent  of  the  intent  of  the  parties." 

Implied  trusts  may  be  divided  into  two  classes,  con- 
structive trusts  and  resulting  trusts.* 

(a).  Constructive   trusts   are    those   which   arise  by 

1  Muller  v.  Dows,  94  U.  S.  444-  8  2  StoIT  Ecl-  Juris-  §  &*• 

3  See  Bouv.  Law  Diet.,  sub.  Trust. 

4  2  Story  Eq.  Juris.  §  1195;  Tied.  Eq.  §  308. 


164  A   REVIEW   IN   LAW   AND   EQUITY. 

construction  of  equity,  regardless  of  the  intent  'of  the 
parties?  There  is  no  element  of  fraud  in  constructive 
trusts  as  here  referred  to.  Trusts  of  this  kind  arise 
most,  frequently  from  the  rule  that  "Whenever  one 
person  is  placed  in  such  relation  to  another  that  he  be- 
comes interested  for  him  or  with  him  in  any  subject 
of  property,  he  is  prohibited  from  acquiring  rights  in 
that  subject  antagonistic  to  the  person  with  whose 
interest  he  has  become  associated."2 

Thus,  if  a  trustee  renews  a  lease  in  his  own  name 
and  with  his  own  funds,  this  renewal  inures  to  the  ben- 
efit of  the  cestui  que  trust,  the  trustee  being  still 
regarded  as  trustee  for  the  beneficiary  in  respect  to  the 
lease. 

(b\  Resulting  trusts  are  those  raised  by  implication 
of  law,  and  are  presumed  to  exist  from  the  supposed  in- 
tention of  the  parties  and  the  nature  of  the  transaction.3 

They  may  arise  in  four  ways.* 

(i).  When  one  person  pays  the  purchase-money,  but 
takes  the  title  to  the  property  in  the  name  of  another. 
Thus,  if  A  buys  land,  but  has  the  deed  made  to  B,  Bis 
regarded  as  trustee  for  A.  It  is  essential  that  the  pay- 
ment be  made  prior  to  or  at  the  time  of  the  conveyance. 

There  is  one  exception  to  this  rule  in  regard  to  a 
resulting  trust,  namely,  in  advancements*  An  advance- 
ment is  a  purchase  by  a  parent,  or  by  one  standing  in 
the  place  of  a  parent,  with  the  conveyance  taken  in  the 
name  of  the  child.  Here  the  presumption  is  that  the 
purchase  was  intended  for  the  benefit  of  the  child,  and 
no  trust  results  to  the  parent  except  on  proof  that  the 
purchase  was  not  meant  as  an  advancement. 

1  Bisph.  Eq.  §91.  2  i  Lead.  Cas.  in  Eq.  62  n.  (4th  Am.  Ed.). 

3  Bouv.  Law  Diet.,  sub.  Resulting  Trust. 

4  Bisph.  Eq.  §  79  et  seq.;  2  Story  Eq.  Juris.  §  1195  et  seq.\  2  Pom. 
Eq.  Juris.  §  1031  et  seq. 

5  2  Story  Eq.  Juris.  §  1213  et  seq.  \  Bisph.  Eq.  §  84. 


EQUITY.  !65 

(2).  When  a  trustee  buys  property  in  his  own  name, 
but  with  trust  funds. 

(3).  When  the  trusts  of  a  conveyance  are  not  declared, 
or  are  but  partially  declared,  and  fail,  the  trustee,  does 
not  hold  for  his  own  benefit,  but  as  trustee  for  the 
donor  himself,  or  of  his  heirs-at-law. 

(4).  Where  there  is  a  voluntary  conveyance,  without 
any  consideration,  and  it  is  evident  that  it  was  not  in- 
tended that  the  grantee  should  hold  the  property  for 
his  own  benefit. 

Express  trusts.— An  express  trust  of  personal 
property  may  be  proved  by  parol,  but  an  express  trust 
of  real  property  must  be  in  writing.1  Three  things  are 
essential  to  the  creation  of  an  express  trust." 

(a).  Sufficient  words  to  create  a  trust. 

(b).  A  definite  subject-matter, — i.  e.,  definite  property 
on  which  the  trust  is  to  operate. 

.  (c).  A  definite  object,  for  whose  benefit  the  trust  is 
created. 

Trusts  may  also  be  divided  into  two  other  classes.5 

1.  Active  trusts,  in  which  the  trustee  has  some  duty 
to   perform,   as  the  conveyance  of  an  estate  to  A  as 
trustee,  who  is  to  pay  the  debts  of  the  testator  and 
then  to  convey  the  property  in  certain  proportions  to 
the  children  of  the  testator. 

2.  Passive  trusts,  sometimes  called  dry  trusts,  which 
require  no  action  on  the  part  of  the  trustee  to  carry 
out  the  trust,  but  in  which  he  is  merely  the  depositary 
of  the  legal  estate.     In  such  a  trust,  the  cestui  que  trust 
may  compel  a  conveyance  of  the  legal  estate  to  himself 
by  the  trustee.4 

Trusts  may  still  further  be  divided  into  two  classes.* 
i.  Executory  trusts.     WThere  some  further  act  is  re- 

1  Bisph.  Eq.  §  63.  2  Cruwys  v.  Colman,  9  Ves.  323. 

3  Tied.  Eq.  §  288;  Bisph.  Eq.  §  54. 

4  i  Lewis  Trusts  *i8.  6  Bisph.  Eq.  §  57;  Tied.  Eq.  §  293. 


1 66  A   REVIEW   IN   LAW   AND   EQUITY. 

quired  to  be  done  by  the  trustee  to  give  the  trust  its 
full  effect,  as  in  the  creation  of  a  trust  by  will,  in  which 
the  trustees  are  directed  to  convey  the  property  held 
in  trust  to  certain  persons  at  a  certain  time. 

2.  Executed  trusts,  where  the  interests  to  be 
created  are  fully  defined  and  created  by  the  instrument 
creating  the  trust,  so  that  no  further  conveyance  is 
required  to  perfect  them,  as  the  appointment  of  A  to 
hold  property  as  trustee  for  B  until  he  reaches  the  age 
of  twenty-one,  and  at  that  time  the  trust  to  cease,  and 
B  to  become  seised  of  the  legal  as  well  as  the  equita- 
ble estate. 

Trusts  may  be  still  further  divided  into  two  classes.1 

1.  Private  trusts,  or  those  in  which  the  beneficial 
interest  is  ultimately  in  one  or  more  definitely  ascer- 
tained individuals. 

2.  Public  or  charitable  trusts.     These  trusts  differ 
from  others  in  two  particulars.2 

(a).  The  rule  against  perpetuities  does  not  operate 
against  them. 

(£).  Certainty  in  the  objects  of  the  trust  is  not 
essential. 

The  following  four  classes  of  trusts  have  been  con- 
strued to  be  charitable  : 8 

(i).  Trusts  for  the  purposes  of  religion. 

(2).  Trusts  for  the  purposes  of  education. 

(3).  Trusts  for  eleemosynary  purposes. 

(4).  Trusts  for  the  purpose  of  relieving  the  govern- 
ment of  burdens,  as  trusts  for  the  building  of  town- 
houses,  etc. 

The  cy  pres  doctrine  is  most  frequently  invoked  in 
carrying  out  trusts  of  this  nature.  (See  page  81.) 

Thus,  in  a  trust  "  for  the  preparation  and  circulation 

1  Bisph.  Eq.  §  59  ;  Tied.  Eq.  §  303. 

2  Id.  §§  116,  133  ;  Id.  §§  306,  307. 

3  Id.  §  120  et  seq. ;  Id. 


EQUITY.  167 

of  books  and  such  other  instruments  as  in  the  judg- 
ment of  the  trustees  will  tend  to  create  an  anti-slavery 
sentiment,  and  for  the  benefit  of  fugitive  slaves," 
negro  slavery  having  been  abolished  when  the  will 
creating  the  trust  went  into  effect,  under  the  cy  pres 
doctrine  the  fund  was  applied  to  the  New  England 
Branch  of  the  American  Freedmen's  Union  Com- 
mission.1 

II.  Mortgages.     (See  page  40.)    As  equity  origi- 
nally interfered  to  protect  the  mortgagor,  it  came  to 
have  complete  jurisdiction  in  all  matters  pertaining  to 
the  foreclosure,  redemption,  etc.,  of  mortgages." 

III.  Assignments.     At   common  law  no  chose   in 
action   could    be   assigned,  because   otherwise   it  was 
feared  that  litigation  would  be  encouraged,  and  it  also 
seemed  absurd  to  the  common  lawyers  that  a  person 
could  sell  a  thing  of  which  he  did  not  have  possession. 
But  such  assignments  were  upheld  in  equity,  as  were 
also  assignments  of  future  and  contingent   interests, 
such  as  the  earnings  of  a  ship.3 

IV.  Accident.     An   accident  is  an  unforeseen  and 
injurious  occurrence,  not  attributable  to  mistake,  neglect, 
or  misconduct* 

Equity  gives  relief  in  three  instances.5 

1.  When  deeds,  or  other  written  instruments,  are  lost. 
If  the  loss  is  without  fault  on  the  part  of  the  loser, 
equity  will  decree  a  re-execution  of  the  instrument.    It 
may  also  direct  the  loser  to  give  to  the  party  who  re- 
executes  the  instrument,  a  bond  of  indemnity,  to  pro- 
tect him    from   any  injury  which  may  occur  to  him 
from  the  discovery  of  the  lost  paper. 

2.  When  penalties  in  bonds  are  accidentally  incurred. 
A  penal  bond  is  one  in  which  the  amount  for  which 

1  Jackson  -'.  Phillips,  14  Allen  556.  s  Tied  Eq.  §  414. 

3  Bisph.  Eq.  §§  162,  164  ;  In  re  Ship  Warre,  8  Price  269. 

4  Smith  Eq.  36  ;  Story  Eq.  Juris.  §  78.          6  Bisph.  Eq.  §  176  et  seq. 


168  A   REVIEW   IN   LAW   AND   EQUITY. 

the  obligor  is  liable,  in  event  of  breach  of  condition,  is 
fixed.  This  amount  is  called  \hz  penalty.  Equity  first 
gained  jurisdiction  by  giving  the  obligor  or  the  sureties 
relief  when,  on  account  of  some  accident,  the  obligor 
was  unable  to  fulfill  the  conditions  on  the  precise  day 
named  in  the  bond.  Jurisdiction  once  gained,  how- 
ever, equity  went  further,  and  declared  that,  on  breach 
of  condition,  the  obligor  should  be  obliged  to  pay  only 
the  amount  actually  due  to,  or  the  damages  actually 
sustained  by,  the  obligee,  on  account  of  breach  of  con- 
dition, and  not  the  penalty  named  in  the  bond. 

The  question  commonly  is  whether  the  amount 
stated  in  the  bond  is  a  penalty,  or  whether  it  is  an 
amount  agreed  upon  by  the  parties  as  a  recompense 
for  the  damages  suffered  in  event  of  condition  broken. 
In  the  latter  case  equity  gives  no  relief.1 

The  amount  of  a  bond  will  be  construed  as  a  penalty, 
and  consequently  relief  will  be  given,  unless  the 
damages  are  uncertain,  and  it  is  impossible  to  render 
them  certain. 

An  obligor  cannot  escape  an  action  for  the  specific 
performance  of  an  agreement  stated  in  a  bond,  by 
electing  to  pay  the  penalty.  The  giving  of  such  a  bond 
does  not  affect  the  question  of  specific  performance.2 

3.  A  defective  execution  of  a  power,  as  in  case  of  a 
trustee,  with  power  to  sell,  who  executes  an  imperfect 
conveyance  to  a  purchaser. 

IV.  Mistake.  A  mistake  arises  when  a  person, 
under  some  erroneous  conviction  of  law  or  of  fact,  does 
or  omits  to  do  some  act,  which,  but  for  the  conviction, 
he  would  not  have  done  or  omitted  to  do.3  Mistakes 
are  of  two  kinds,  mistakes  of  law  and  mistakes  of 
fact. 

i.  As  a  rule,  equity  gives  no  relief  for  mistakes  of 

1  Bisph.  Eq.  §  178  et  seq.  ;  I  Story  Eq.  Juris.  §  89  ;  Adams  Eq.  *io8. 
*  Bisph.  Eq.  §  180.  3  Haynes  Outlines  of  Eq.  132. 


EQUITY.  169 

law.  Ignorance  of  the  law  excuses  no  one.  This  rule 
has  been  somewhat  shaken  however.' 

Courts  readily  take  advantage  of  circumstances  on 
which  to  base  relief,  especially  if  advantage  has  been 
taken  by  one  party  of  the  ignorance  of  the  other,  or  if 
any  attempt  has  been  made  to  confirm  this  ignorance.* 

2.  A  mistake  of  fact  will  be  relieved  in  equity  if  the 
mistake  is  mutual,  material,  and  not  caused  by  negligence. 

V.  Fraud.  There  are  many  remedies  at  common 
law  for  redressing  injuries  arising  from  fraud,  but  they 
are  often  inadequate  from  their  very  nature.  The  aim 
of  equity,  in  the  matter  of  fraud,  is  to  place  the  parties, 
so  far  as  possible,  in  their  condition  prior  to  the  com- 
mission of  the  fraudulent  act,  the  nature  of  equitable 
remedies  rendering  this  possible.  Again,  at  law  fraud 
must  always  be  proved ;  there  is  never  a  presumption  of 
fraud ;  while  in  equity,  an  indisputable  presumption  of 
fraud  frequently  arises  from  the  relations  of  the  parties 
or  the  nature  of  the  transaction.3 

Equity  has  jurisdiction  in  all  cases  of  fraud,  with 
two  exceptions.4 

1.  In  cases  of  fraud  used  in  regard  to  a  will,  in  which 
courts  of  probate  have  exclusive  jurisdiction. 

2.  In  cases  where  the  remedy  at  law  is  complete  and 
adequate. 

Fraud  is  divided  into  two  classes.5 

1.  Actual  fraud,  or  the  intentional  and   successful 
employment  of  any  cunning,  deception,  or  artifice  to 
circumvent,  deceive,  or  cheat  another. 

2.  Constructive  or  legal  fraud, — i.  e.,  fraud  which  is 
presumed  from  the  nature  of  the  case,  the  relations  of 
the  parties,  etc. 

1  See  Bisph.  Eq.  §  187  et  seq.  ;  Keener  Quasi-Contract,  85  et  rcq.  ;  2 
Pom.  Eq.  Juris.  §  842  et  seq.  *  Bisph.  Eq.  §  188,  and  cases  cited. 

3  Bisph.  Eq.  §§  197,  198,  201.  4  Id.  §§  199.  200. 

5  i  Story  Eq.  Juris.  §  184  et  seq.,  §  258. 


I/O  A   REVIEW   IN   LAW   AND   EQUITY. 

Fraud  may  also  be  divided,  according  to  Lord  Hard- 
wicke,  into  four  classes.1 

1.  Fraud  arising  from  the  facts  and  circumstances  of 
the  imposition. 

2.  Fraud  apparent  from  the  intrinsic  nature  of  the 
bargain  itself. 

3.  Fraud  which  is   inferred  from  the  circumstances 
and  relations  of  the  parties. 

4.  Fraud  inferred  from  the  nature  and  circumstances, 
of  the  transaction  as  being  a  fraud  on  third  parties. 

1.  In  order  to  make  a  representation  fraudulent,  in 
this  class  of  fraud,  four  facts  must  exist." 

(a).  The  representation  must  be  actually/tf/fo7. 
(b\  It  must  be  supposed  to  be  untrue  by  the  party 
making  it. 

(c\  It  must  be  relied  on  by  the  party  to  whom  it  is  made. 
(d\  It  must  be  a  material  misrepresentation. 

2.  A  transaction  of  the  second  class  may  be  fraud- 
ulent on  two  grounds.* 

(a).  Because  of  its  terms,  as  in  a  contract  where 
^he  consideration  is  grossly  inadequate — contracts  are, 
however,  rarely  set  aside  on  this  ground  alone, — also  in 
case  of  usurious  contracts  and  gambling  transactions. 

(£).  Because  of  its  subject-matter,  as  in  marriage 
brocage  contracts,  contracts  in  restraint  of  marriage 
and  of  trade.  (See  page  93.) 

3.  Fraud  of  this  kind  may  arise  from  two  circum- 
stances.4 

(a).  From  the  mental  disability  of  one  party,  as  in 
case  of  idiots  and  insane  persons. 

(ft).  From  the  supposition  of  undue  influence  arising 
from  the  relations  of  the  parties.  These  relations  are 
ordinarily  four. 

1  Chesterfield  v.  Janssen,  r  Atk.  301. 

2  Bisph.  Eq.  §  206  ;  Adams  Eq.  *I7&.          3  Bisph.  Eq.  g§  219,  224. 
4  Id.  §  230  et  seq. 


EQUITY.  i7i 

(i).  Guardian  and  ward. 

(2).  Parent  and  child. 

(3).  Attorney  and  client. 

(4).   Trustee  and  cestui  que  trust. 

Gifts  to  the  guardian,  parent,  attorney,  or  trustee 
from,  and  contracts  to  their  advantage,  with  the  ward, 
child,  client,  or  cestui  que  trust,  are  regarded  with  the 
greatest  disfavor  by  courts  of  equity,  and  are  set  aside 
upon  the  least  indication  of  undue  influence.  In  some 
instances  the  transaction  can  be  set  aside  at  the  option 
of  the  party  presumably  imposed  upon,  as  in  case  of  a 
gift  from  client  to  attorney,1  while  in  others  the  pre- 
sumption of  fraud  is  prima  facie  only,  and  may  be  re- 
moved by  evidence  of  perfect  fair  dealing  and  absence 
of  undue  influence,  as  in  case  of  a  transaction  between 
parent  and  child.3 

The  general  rule  is  that  no  party  in  a  fiduciary  re- 
lation can  be  permitted  to  profit  at  the  expense  of  the 
party  whose  interests  are  confided  to  him.3 

4.  The  most  familiar  instance  of  fraud  of  this  class 
is  found  in  conveyances  designed  to  defraud  creditors. 
Such  conveyances  are  void,  though  given  for  a  valuable 
consideration,  provided  that  the  purchaser  knew  of  the 
intent  to  defraud.4 

VI.  Notice.  The  doctrine  of  notice  had  strictly  no 
application  at  common  law.  There  parties  stood  solely 
on  their  legal  titles,  and  notice  or  knowledge  of  a  prior 
title  was  of  no  effect.  The  rule  in  equity,  however,  is 
that  a  purchaser  who  takes  property  with  notice  of 
valid  claims  and  encumbrances  upon  it,  takes  it  subject 
to  those  claims  and  encumbrances.4 

Thus,  if  A  holds  the  legal  title  to  an  estate  charged 

1  Holman  v.  Loynes,  4  D-  G.  M.  &  G.  270 ;  Greenfield's  Estate, 
14  Pa.  489. 

'l  Taylor  v.  Taylor,  8  How.  183. 

3  See  Bisph.  Eq.  §§  234,  238  ;  I  Story  Eq.  Juris.  §  30?  ft  "I- 
*  Bisph.  Eq.  §  243.  *  Id.  §§261,262. 


1/2  A   REVIEW   IN   LAW   AND   EQUITY. 

with  a  trust,  and  conveys  the  estate  to  B,  who  pur- 
chases in  good  faith  and  for  a  valuable  consideration, 
and  without  notice  of  the  trust,  he  holds  it  discharged 
from  the  trust.  But  if  he  takes  it  with  notice,  he  takes 
it  subject  to  the  trust. 

Notice  is  the  knowledge,  either  actual  or  constructive 
of  some  act  done.  It  is  of  two  kinds. 

1.  Actual,  when  the  knowledge  is  actually  brought 
home  to  the  party  to  be  charged  with  it,  as  where  one 
sees  the  record  of  a  deed. 

2.  Constructive,   when    the    party,   by   any   circum- 
stance, is  put  upon  inquiry,  or  certain  acts  have  been 
done,  of  which  knowledge  is  presumed  on  grounds  of 
public  policy  ; 1  as  in  case  of  a  party  in  possession  of  a 
deed  which  refers  to  another  deed  given  to  another 
party.     Here  the  party  having  the  first   deed  has  con- 
structive notice  of  the  contents  of  the  second.     There 
is  also  constructive  notice  of  the  record  of  a  deed,  of  a 
publication  in   a  newspaper  when  it  is  authorized  by 
legal  process,  of  the  public  acts  of  government,  and  of 
the  pendency  of  a  suit  (Us pendens). 

VII.  Estoppel  is  the  preclusion  of  a  person  from 
asserting  a  fact,  by  previous  conduct  inconsistent  there- 
with, on  his  own  part  or  on  the  part  of  those  under 
whom  he  claims,  or  by  an  adjudication  of  his  rights 
which  he  cannot  be  allowed  to  question.1 

Estoppel  is  of  three  kinds.3 

1.  By  deed.     A  party  to  a  deed  is  estopped  to  deny 
anything  therein  which  has  operated  on'  the  other  party. 
This  estoppel  affects  only  parties  and  privies  in  blood,  law, 
or  estate,  as  ancestor  and  heir,  executor  or  administrator 
and  the  person  deceased,  lessor  and  lessee,  etc. 

2.  By  matter  of  record,  as  by  the  adjudication  of  a 
proper  court. 

1  Bouv.  Law  Diet.,  sub.  Notice  ;  Bisph.  Eq.  §§  263,  268. 

s  Bouv.  Law  Diet.  *  Id.;  Bisph.  Eq.  §  281. 


EQUITY.  !73 

3.  By  matter  in  pais.  Such  an  estoppel  arises  from 
the  acts  and  declarations  of  a  person  by  which  he  in- 
tentionally induces  another  to  alter  his  position  inju- 
riously to  himself,  as  when  A  stands  by  and  allows  B  to 
sell  property  which  belongs  to  A,  without  remonstrating. 
A  is  then  estopped  to  deny  that  B  had  title  to  the 
property.  That  is,  he  cannot  assert  his  title  against 
the  purchaser  from  B. 

Estoppels  by  deed  and  record  are  common-law  estop- 
pels. Estoppels  by  matter  in  pais,  are  equitable. 

To  work  an  estoppel  by  matter  in  pais,  five  things 
are  essential.1 

(a).  A  representation  or  concealment  of  material  facts 
by  the  party  to  be  estopped. 

(6).  Knowledge  of  the  facts  on  the  part  of  the  person 
making  the  representation. 

(c).  Ignorance  of  the  facts  on  the  part  of  the  person  to 
whom  the  representation  was  made. 

(d).  An  intention  that  the  party  to  whom  the  represen- 
tation was  made  should  act  upon  it. 

(e).  Action  on  the  representation  by  the  party  to  whom 
it  was  made. 

The  doctrine  of  estoppel  operates  in  election.  Elec- 
tion is  the  obligation  imposed  upon  a  party  to  choose 
between  two  inconsistent  or  alternative  rights,  in  cases 
where  there  is  a  clear  intention  on  the  part  of  the  person 
from  whom  he  derives  one  that  he  should  not  enjoy  the 
other •?  as  if  A  should,  by  will,  give  $1,000  to  B,  on  con- 
dition that  B  should  give  certain  property  of  his  to  C. 
Here,  B  must  choose  whether  to  retain  his  own  prop- 
erty, and  surrender  the  legacy,  or  whether  to  accept 
the  legacy  and  transfer  the  specified  property  to  C. 
When  the  choice  is  made,  he  is  estopped  from  asserting 
any  interest  in  the  other  right.  Thus,  if  he  accepts  the 
$1,000,  he  is  estopped  to  deny  that  the  specified  prop- 
erty of  his  should  be  given  to  C. 

1  Big.  on  Estoppel  569.  8  2  Story  Eq.  Juris.  §  1075. 


A   REVIEW   IN   LAW   AND   EQUITY. 

VIII.  Conversion.     By    conversion,    in    equity,   is 
meant  a  change  of  property  from  personal  into  real,  or 
from  real  into  personal,  not   actually  taking  place,  but 
supposed    to    take   place   by   construction  of  equity.' 
When  money  has  been  directed  to  be  employed  in  the 
purchase  of  land,  or  when  land  has  been  directed  to  be 
sold  and  converted  into  money,  equity  will  suppose  the 
change  to  have  taken  place,  and  will  regard  the  money 
as  land,  and  the  land  as  money.     Thus,  if  A  enter  into 
a  valid  contract  with  B  for  the  conveyance  of  certain 
land    from   B   to  A,  A  is  regarded,  in  equity,  as  the 
owner  of  the  land  ;  he  can  devise  it,  and  if  he  dies  be- 
fore the  conveyance  is  made,  his  personal  representa- 
tives must  pay  for  the  land  thus  bargained  for,  which, 
of  course,  descends  to    his    heirs-at-law.     Thus,    the 
money  which  A 'was  to  pay  for  the  land  is  regarded,  in 
equity,  as  converted  into  land.     So,  if  B  dies  before 
making  the  conveyance  to  A,  his  personal  representa- 
tives  can   bring  an    action    for    specific    performance 
against  A,  and  the  money  so  obtained  for  the   land 
goes  to  the  personal  representatives,  to  be  distributed 
according  to  law.     Conversion  depends  largely   upon 
Maxim  8. 

IX.  Under  Adjustment  four  topics  may  be  con- 
sidered, contribution,  exoneration,  subrogation,  and  mar- 
shalling of  assets. 

i.  The  right  of  contribution  arises  when  one  of  several 
parties  who  are  jointly  liable  for  the  payment  of  a  debt, 
pays  the  whole  of  it  for  the  benefit  of  all.  The  princi- 
ple of  contribution  is  applied  most  frequently  in  the 
case  of  sureties?  Originally,  the  surety  paying  the 
whole  debt  had  no  common-law  remedy  against  his  co- 
sureties. Later,  a  common-law  action  was  allowed  on 
the  ground  of  an  implied  promise  by  the  co-sureties  to 
pay  their  share  of  the  debt. 

1  Bisph.  Eq.  §  307.  *  Id.  §  328  et  seq. 


EQUITY.  I75 

The  equitable  remedy  is  superior,  however,  because  it 
can  enforce  contribution  from  the  personal  representa- 
tives of  a  deceased  surety,  and,  in  case  any  of  the 
sureties  are  insolvent,  can  compel  the  solvent  sureties 
to  pay  their  proportional  amounts,  without  regard  to 
the  insolvent  sureties. 

2.  By  exoneration  is  meant  the  right  of  those  who 
are  successively  or  secondarily  liable,  to  look  for  reim- 
bursement to  those  who  are  previously  or  primarily 
liable.1     Thus,  if  a  surety  pays  a  debt,  he  can  proceed 
against  his  principal,  and  a  surety  who  by  his  contract 
is  liable  only  upon  the  default  of  his  principal  or  of  a 
prior  surety,  can  proceed  against  either  for  reimburse- 
ment. 

3.  Subrogation  is  the  right  by  which  a  person  who  is 
secondarily  liable  for  a  debt,  and  has  paid  it,  is  put  in 
the  place  of  the  creditor,  and  has  the  right  to  receive 
from    the  creditor   all   other   security  which  he  held 
against  the  principal  debtor."     Thus,  if  A  holds  a  note 
of  B's,  secured  by  a  mortgage,  and  C  is  surety  on  the 
note,  and,  upon  default  of  payment  by  B,  pays  it,  C 
stands  in  the  place  of  A,  so  far  as  the  mortgage  is  con- 
cerned, and  can  compel  an  assignment  of  the  mortgage 
by  A. 

4.  By  marshalling  of  assets  is  meant  that  if  one  party 
has  a  lien  on,  or  interest  in,  two  funds  for  the  satisfac- 
tion of  a  debt,  and  another  party  has  a  lien  on,  or 
interest   in,  but  one  of  the  same  funds  for  the  satis- 
faction of  a  debt,  the  second  party  can  compel  the 
first  party  to  resort  to  that  one  of  the  funds  on  which 
the  second  party  has  no  claim,  before  he  resorts  to  the 
other    fund.3     Thus,    if  A  has  a  mortgage  on  lots  I 
and    2,  and    B    has   a    mortgage    on    lot    2    only    he 
can  compel  A  to  exhaust  the  security  afforded  by  his 

1  Tied.  Eq.  §  530.  5  Bisph.  Eq.  §  335;  see  Tied.  Eq.  §  531. 

*  I  Story  Eq.  Juris.  §  633. 


A   REVIEW   IN   LAW   AND   EQUITY. 

mortgage  on  lot  i,  before  he  resorts  to  his  mortgage 
on  lot  2.  Instead,  however,  of  B's  restraining  A  from 
resorting  to  his  mortgage  on  lot  2,  the  more  usual 
way  is  to  subrogate  B  to  all  of  A's  rights,  after  A  has 
satisfied  his  claim  in  whatever  way  he  sees  fit.1 

X.  Equitable  liens  are  liens  enforced  by  courts  of 
equity  only."  They  differ  from  common-law  liens  in 
that  possession  is  not  essential.3 

The  chief  equitable  lien  is  the  vendor  s  lien  for  un- 
paid purchase-money  in  case  of  the  conveyance  of  land. 
This  lien  can  be  enforced  against  all  parties  who  take 
with  notice  of  it.  Thus,  if  A  conveys  land  to  B,  giv- 
ing the  latter  the  deed,  and  before  payment  of  the 
purchase-money  B  conveys  to  C,  who  takes  with  notice 
of  the  fact  that  the  purchase-money  has  not  been  paid,4 
A  can  enforce,  by  a  bill  in  equity,  his  lien  on  the  land 
in  the  hands  of  C.  This  lien  is  not  recognized  in  many 
States,  and  in  others  only  with  qualifications/ 

An  equitable  mortgage  is  one  created  by  the  deposit 
of  title-deeds  with  a  creditor  as  security  for  a  debt.' 
In  some  States  this  is  recognized  as  creating  a  mort- 
gage on  the  land,  as  between  the  parties,  which  may  be 
enforced  in  equity  as  a  lien  on  the  land. 

1  Bisph.  Eq.  §  341.  2  Bouv.  Law  Diet.,  sub.  Lien. 

3  Bisph.  Eq.  §  351.  «  Id.  §  356. 

6  Id- §353-  6  Id.  §357- 


CHAPTER   XXVIII. 

EQUITABLE   REMEDIES. 

THERE  are  eleven  equitable  remedies  of  chief  import- 
ance,— specific  performance,  injunctions,  re-execution,  re- 
scission and  cancellation  of  written  instruments,  account, 
creditors'  bills,  bills  of  discovery,  partnership  bills,  bills 
quia  timet,  bills  of  peace,  bills  of  interpleader,  bills  to 
take  testimony  de  bene  esse. 

I.  By  specific  performance  is  meant  the  actual  per- 
formance of  a  contract  by  the  party  bound  to  perform 
it.1  As  a  rule,  equity  will  compel  the  specific  per- 
formance of  a  contract  when  the  common-law  remedy  of 
damages  for  its  breach  is  inadequate? 

Specific  performance  of  contracts  for  the  transfer  of 
real  property  is  enforced  most  frequently  because,  as  a 
rule,  a  breach  of  contract  in  regard  to  personal  property 
can  be  adequately  remedied  by  an  action  for  damages. 
If,  however,  this  remedy  is  not  adequate,  a  contract  in 
regard  to  personalty  will  be  enforced  specifically  as 
readily  as  one  in  regard  to  realty.  Thus,  if  A  wishes 
to  obtain  1,000  shares  of  stock  fora  particular  purpose, 
and  B  has  agreed  to  sell  him  10  shares,  which  are  the 
last  obtainable,  and  which  will  make  up  the  desired 
number,  equity  will  compel  B  to  transfer  his  10  shares 
to  A.3 

In  order  that  a  court  may  decree  the  specific  per- 
formance of  a  contract,  four  things  are  essential.4 

1  Bouv.  Law  Diet.  *  2  Story  Eq.  Juris.  §  716. 

3  Id.  §  717  et  seq.;  Bisph.  Eq.  §§  364,  368. 

4  Bouv.  Law  Diet.,  sub.  Spec.  Per.;  see  Bisph.  Eq.  §  372  et  seq.;  3 
Pom.  Eq.  Juris.  §  1405  et  seq.;  Tied.  Eq.  §  497. 


178  A  REVIEW  IN  LAW  AND   EQUITY. 

1.  The  contract  must   be  founded  upon  a  valuable 
consideration,  and  this  consideration  must  be  proved, 
though  the  contract  be  under  seal.1 

2.  The  enforcement  of  the  contract  must  be  prac- 
ticable? 

3.  The  specific  performance  of  the  contract  must  be 
actually  necessary  to  the  plaintiff,  and  not  oppressive  to 
the  defendant.3 

4.  When  a  contract  is  required  to  be  in  writing  by 
the  statute  of  frauds,  it  must  be  in  writing  if  specific 
performance  is  asked.4 

The  specific  performance  of  contracts  to  convey 
land  is,  however,  granted  in  three  cases,  though  the 
contract  is  not  in  writing.* 

(a).  When  there  has  been  a  part  performance.  Thus, 
if  A  orally  agrees  to  sell  land  to  B,  and  B  takes  pos- 
session and  erects  a  building  on  the  land,  B  can  compel 
specific  performance  of  the  contract  on  the  part  of  A.8 
What  amounts  to  a  part  performance  sufficient  to  take 
the  case  out  of  the  statute,  depends  upon  the  circum- 
stances of  each  case. 

(b\  When  the  reduction  of  the  contract  to  writing 
has  been  prevented  by  fraud.  Thus,  if  an  intended 
husband  promises  to  have  a  marriage  settlement  re- 
duced to  writing,  and  by  fraud  prevents  its  being  done, 
and  the  marriage  occurs,  the  agreement  in  regard  to 
the  marriage  settlement  can  be  enforced  specifically.7 

(c).  When  in  an  action  for  specific  performance,  the 

1  Lear  v.  Chouteau,  23  111.  39;  Smith  v.  Phillips,  77  Va.  548; 
Thompson  et  al.  v.  Allen,  12  Ind.  539. 

*  Johnson  v.  Railroad  Co.,  3  DeG.  M.  and  G.  914;  Marble  Co.  v. 
Ripley,  10  Wall.  339. 

3  i  Beasl.  Ch.  497  ;  2  Jones  Eq.  267  ;  Adams  Eq.  *83  ft  seq. 

4  Bisph.  Eq.  §  382  ;  2  Story  Eq.  Juris.  §  752  et  seq. 

5  Id.  §  383  ;  Id.  §§  755,  759,  768. 

6  Maddison  v.  Alderson,  8  App.  Cas.  474  ;  Wainwright  v.  Talcott, 
60  Conn.  43. 

1  Montacute  v.  Maxwell,  i  P.  Wins.  618  ;  Wharton's  Ev.  §  911. 


EQUITABLE   REMEDIES.  179 

defendant  in  his  answer  admits  the  oral  contract,  and 
does  not  set  up  the  statute  in  defence.1 

II.  Injunctions.  An  injunction  is  a  prohibitory 
writ,  issued  by  the  authority  of  a  court  of  equity,  to 
restrain  one  or  more  of  the  parties  to  a  proceeding  in 
equity  from  doing,  or  permitting  those  under  their 
control  to  do,  an  act  which  is  regarded  as  unjust  or  in- 
equitable so  far  as  the  rights  of  other  parties  to  the 
proceedings  are  concerned.3 

With  regard  to  their  nature,  injunctions  are  divided 
into  two  classes. 

1.  Mandatory,  or  those  commanding  the  defendant 
to  do  a  particular  thing.3 

2.  Preventive  or  prohibitory,  or  those  commanding 
the  defendant  to  refrain  from  some  act.4 

With  regard  to  the  time  when  issued,  injunctions  are 
divided  into  two  classes.5 

1.  Interlocutory  or  preliminary,  or  those  granted  to 
restrain    the   defendant    from    doing   some  act,  either 
temporarily  or  during  the  pendency  of  the  suit. 

2.  Final  or  perpetual,  or  those  which  are  issued  in 
the  final  decree  of  the  court,  when  the  rights  of  the 
parties  are  finally  adjudicated  and  disposed  of  by  the 
order  or  decree  of  the  court,  and  by  which  the  defend- 
ant is  perpetually  enjoined  from  doing  the  act  in  ques- 
tion.* ' 

Injunctions  are  resorted  to  most  frequently  to  pre- 
vent waste,  nuisances,  trespass,  to  protect  copyrights, 
patent-rights,  trade-marks,  and  property  pending  litiga- 
tion/ 

1  Harris  v.  Knickerbocker,  5  Wend.  638  ;  MeGowen  v.  West,  7  Mo. 
569  ;  Browne  Stat.  Frauds  §  476. 
9  Bouv.  Law  Diet,  and  authorities  cited. 
3  Joyce  Injunctions  1309.  4  Bisph.  Eq.  §  4OL 

5  Kerr  Injunctions,  Chap.  II. 

6  Kershaw  v.  Thompson,  4  Johns.  Ch.  610. 
1  Bisph.  Eq.  §  428  et  seq. 


ISO  A  REVIEW  IN  LAW  AND  EQUITY. 

III.  Re-execution    is    resorted    to    when    written 
instruments   have   been   lost   or  destroyed.     It  is  the 
principal  remedy  when  a  deed  has  been  lost,  thus  de- 
stroying a  link  in  a  chain  of  title.1 

Reformation  is  the  remedy  by  which  an  instrument 
is  reformed  so  as  to  correctly  express  the  intention  of 
the  parties.  It  is  resorted  to  most  frequently  in  cases 
of  mistake  or  fraud? 

The  rescission  and  cancellation  of  instruments 
depend  upon  the  discretion  of  the  court,  and  decrees 
to  that  effect  are  made  when  necessary  for  the  protec- 
tion of  the  parties,  as  when  forged  instruments  are 
ordered  to  be  given  up,  or  a  deed  to  be  cancelled  as 
being  a  cloud  on  the  title.3 

IV.  Bills  of  account  were  resorted  to  because  of 
the  inadequacy  of  the  common-law  remedy.    Equitable 
jurisdiction  is  exercised  chiefly  in  three  cases.4 

1.  In  mutual  accounts.    At  common  law  it  was  prac- 
tically impossible  to  investigate  a  mutual  account  with 
a  jury. 

2.  In  complicated  accounts. 

3.  When  there  is  a  fiduciary  relation    existing  be- 
tween   the    parties.     Having    jurisdiction    over    such 
parties   in    other   relations,   equity  naturally  assumed 
jurisdiction  in  matters  of  account. 

No  bill  in  equity  can  be  brought  on  an  account 
stated.  Here  the  common-law  remedy  is  sufficient.6 

To  surcharge  an  account  is  to  show  that  a  proper 
credit  has  been  omitted.  To  falsify  an  account  is  to 
show  that  an  improper  charge  has  been  inserted.6 

V.  A  creditors'  bill  is  a  bill  filed  by  creditors  for 
the  purpose  of  collecting  their  debts  out  of  property 

1  Bisph.  Eq.  §  467-  2  Tied.  Eq.  §  506. 

3  Id.  §  508. 

4  Bisph.  Eq.  §  484  ;  3  Pom.  Eq.  Juris.  §  1421. 

5  Bisph.  Eq.  §  485. 

6  Id.  §  486,  citing  Pit  v.  Cholmondeley,  2  Ves.  Sr.  565. 


EQUITABLE   REMEDIES.  l8l 

of  the  debtor  which  cannot  be  reached   at   common 
law. 

Judgment  creditors  alone  can  resort  to  a  creditors' 
bill.  By  this  bill,  equitable  property  belonging  to  the 
debtor  may  be  reached,  and  also  property  transferred 
for  the  purpose  of  defrauding  creditors.  It  must  be 
shown  that  the  creditor  has  exhausted  his  common-law 
remedy.  This  is  done  by  alleging  and  proving  that  he 
has  obtained  judgment,  and  that  execution  has  been 
taken  out  and  returned  unsatisfied.1 

VI.  A  bill  of  discovery  is  one  brought  to  compel  a 
defendant  to  disclose  facts  within  his  knowledge,  or  to 
produce  instruments  in  his  possession,  in  order  to  main- 
tain the  right  or  title  of  the  party  bringing  the  bill,  in 
some  proceeding  in  another  court.   At  common  law,  no 
party  in  interest  could  give  evidence  in  a  suit,  and  as  it 
frequently  happened  that  the  plaintiff's  case  depended 
upon  facts  or  documents  in  the  knowledge  or  possession 
of  the  defendant,  equity  was  resorted  to  through  a  bill 
of  discovery  to  obtain  the  needed  information.    With 
the  change  in  the  common-law  rules  of  evidence,  bills 
of  discovery  have  largely  fallen  into  disuse.2 

VII.  Partnership  bills  are  bills  brought  for  the  dis- 
solution of  a  partnership,  the  protection  of  its  property, 
an  account,  and  a  distribution  of  the  assets.     None  of 
these  ends  can  be  fully  or  satisfactorily  obtained  at 
law ;  hence  equity  has  assumed  jurisdiction  in  matters 
pertaining  to  the  dissolution  and  winding  up  of  part- 
nerships.3 

VIII.  Bills  quia  timet  are  bills  brought  to  prevent 
wrongs  or  anticipated  mischiefs.4     The  remedy  given 
depends  upon  the  circumstances  of  each  case.     Thus, 
if  a  fund  in  the  hands  of  trustees  is  likely  to  be  squan- 

1  Bisph.  Eq.  §  575  ft  seq. 

5  Id.  §  556  et  seq.  ;  z  Story  Eq.  Juris.  §  688  et  seq. 

*  Id.  §  505  et  seq.  4  2  Story  Eq.  Juris.  §  826. 


1 82  A   REVIEW   IN   LAW   AND   EQUITY. 

dered  or  diverted  from  its  original  object,  equity  will 
remove  the  trustees  and  appoint  others.  Other  cases 
may  require  the  appointment  of  a  receiver,  or  the 
granting  of  an  injunction,  as  against  the  commission  of 
waste.1  BILLS  TO  QUIET  TITLE  are  classed  among 
bills  quia  timct.  Thus,  if  a  title  is  clouded  by  any 
instrument,  whether  of  record  or  not,  which  has  become 
inoperative,  equity  will  decree  its  cancellation.2 

IX.  Bills  of  peace  are   bills   filed   to   prevent   the 
recurrence  of  litigation  by  a  numerous  class  insisting 
on  the  same  right,  or  to  prevent  the  same  person  from 
prosecuting  anew  an  unsuccessful  claim.*     In  the  first 
case,  the  court  makes  up  an  issue  to  determine  the 
right,    and   this   determination    is    conclusive    on    all 
parties.     In  the  second    case  the  court  issues  an  in- 
junction against  further  litigation  of  the  claim.     This 
course  was  resorted  to  most  frequently  in  the  action  of 
ejectment.     Here  a  decision  at  common  law  in  favor 
of  the  apparent  plaintiff  did  not  prevent   recourse  to 
the  action  again  by  the  actual  plaintiff.     Hence,  when 
the  title  to  land  was  tried  five  times  by  ejectment,  with 
the  result   in  favor  of  the   defendant   each  time,  the 
court  granted   a  perpetual  injunction   against  further 
litigation  of  the  claim.4 

X.  Bills  of  interpleader  are  bills  filed   by  a   third 
person,  who,  not  knowing  to  whom  he  ought  to  render  a 
debt  or  a  duty,  and  fearing  that  he  may  be  injured  by 
some  of  the  claimants,  asks  that  they  may  be  directed 
to  interplead,  so  that  the  court  may  decide  to  whom 
the  debt  or  duty  should  be  rendered.5     Thus,  if  A  de- 
posits money  with  B,  and  C  then  claims  to  be  the 
owner  of  the  money,  B  is  not  compelled  to  pay  the 

1  2  Story  Eq.  Juris.  §  826.  *  Bisph.  Eq.  §  575. 

3  See  Id.  §  415  et  seq.  ;  2  Story  Eq.  Juris.  §  852  et  seq. 

4  Earl  of  Bath  v.  Sherwin,  Free.  Ch.  261. 

5  Bouv.  Law  Diet,  and  authorities  cited. 


EQUITABLE   REMEDIES.  183 

money  to  either  A  or  C,  but  can  file  his  bill  of  inter- 
pleader to  have  the  ownership  of  the  money  determined 
as  between  A  and  C. 

XI.  Bills  to  take  testimony  de  bene  esse  are  bills 
brought  to  take  the  testimony  of  a  witness  to  a  fact 
material  to  the  prosecution  of  a  suit  at  law  which  has 
been  commenced,  and  when  there  is  reason  to  fear  that 
otherwise  the  testimony  may  be  lost  before  the  time 
of  trial.  This  was  resorted  to  when  the  witness  was 
old  or  infirm,  or  was  about  to  leave  the  country,  or 
when  there  was  but  one  witness  to  the  fact.1  This  bill 
has  fallen  into  disuse  through  the  power  given  to 
common-law  courts  to  take  testimony  through  inter- 
rogatories. 

Bills  to  perpetuate  testimony  are  bills  to  preserve 
testimony  which  is  in  danger  of  being  lost  before  the 
matter  to  which  it  relates  can  be  made  the  subject  of  a 
trial.  They  differ  from  bills  de  bene  esse  in  that  in  the 
latter  legal  proceedings  have  been  begun.* 

1  2  Story  Eq.  Juris.  gg  1513,  1514.  l  Id.  §  1505. 


CHAPTER   XXIX. 

PLEADING. 

An  action  is  a  lawful  demand  of  right.1  Actions  are 
divided  into  classes. 

1.  Criminal  actions. 

2.  Civil  actions. 

Civil  actions  are  divided  into  two  classes. 

1.  Legal  actions. 

2.  Equitable  actions. 

Legal  actions  are  divided  into  three  classes. 

1.  Real  actions. 

2.  Personal  actions. 

3.  Mixed  actions. 

i.  Real  actions  are  those  which  are  brought  for 
the  specific  recovery  of  lands,  tenements,  or  heredita- 
ments. Mixed  actions  are  such  as  partake  of  the 
nature  of  both  real  and  personal  actions,  as  those 
brought  both  for  the  specific  recovery  of  lands,  etc.  and 
for  damages  sustained  in  respect  to  such  property.2 

By  statute  3  and  4  William  IV.  (1833-34),  all  real 
and  mixed  actions  were  abolished,  with  the  exception 
of  four.3 

(a).  Writ  of  right  of  dower,  resorted  to  by  a  widow 
to  obtain  a  specific  portion  of  her  dower,  part  of  it  hav- 
ing been  already  received. 

(b).  Writ  of  dower,  resorted  to  by  a  widow  to  obtain 
her  dower,  no  portion  having  as  yet  been  assigned  to 
her. 

(c).    Writ  of  quare  impedit,  resorted  to  by  a  person 

1  3  Bl.  Comm.  116.  *  Steph.  PI.  *4-  3  Id.  *4,  *9  et  seq. 

(184) 


PLEADING.  185 

who  has  been  presented  to  a  benefice,  but  whose  pos- 
session is  prevented  or  obstructed. 

(d).  Ejectment.  This  was  originally  a  personal  action 
resorted  to  by  a  tenant  for  years,  to  recover  damages 
for  ouster  from  the  property  leased  to  him.  Owing  to 
the  intricacy,  technicality,  and  delay  incident  to  the 
ancient  real  actions,  the  action  of  ejectment  was  re- 
sorted to  as  a  means  of  trying  title  to  land.  For,  in 
this  action,  in  addition  to  giving  a  judgment  for  dam- 
ages, the  court  also  determined  that  the  ousted  tenant 
should  recover  possession  of  the  lands. 

As  originally  resorted  to  as  a  means  of  trying  title, 
the  procedure  was  as  follows:  A,  who  is  out  of  posses- 
sion of  lands  which  are  in  the  possession  of  D,  and  to 
which  he  claims  title,  makes  a  lease  for  years  of  the 
lands  to  B.  B  enters  and  is  ousted,  or  put  off  the 
land  by  D.  If  not  ousted  by  D,  C,  who  is  brought 
along  for  the  purpose,  and  who  is  called  the  casual 
ejector,  ousts  the  lessee,  B.  B  then  begins  an  action  of 
ejectment  against  D,  or,  if  ousted  by  C,  against  C.  In 
the  latter  case  C  gives  notice  to  D  that  he,  C,  has 
ousted  B,  that  he  had  no  right  to  do  so,  as  he  had  no 
title  to  the  land,  and  that  D  must  appear  to  defend  his 
title,  or  B  will  recover  judgment  for  the  lands.  D 
appears,  and  the  lease  to  B,  his  entry  and  ouster  being 
proved,  the  only  remaining  question  was  that  of  title, 
namely,  whether  A  could  give  a  valid  lease  of  the  lands 
in  question  to  B. 

In  course  of  time,  these  proceedings  became  largely 
fictitious.  There  was  no  actual  lease,  entry,  or  ouster. 
B,  the  lessee,  and  C,  the  casual  ejector,  were  imaginary 
parties.  An  action  of  ejectment  was  begun  by  B,  the 
imaginary  lessee,  against  C,  the  imaginary  ejector,  in 
which  the  making  of  a  lease  by  A,  the  real  claimant, 
entry  by  B,  and  ouster  by  C  are  alleged  in  the  declara- 
tion. D,  through  the  attorneys  of  the  real  plaintiff  A, 


1 86  A   REVIEW  IN  LAW  AND  EQUITY. 

is  notified,  in  the  name  of  C,  of  the  beginning  of  the 
action,  and  is  advised  to  appear  and  defend.  Before  he 
was  allowed  to  appear,  however,  he  must,  by  a  rule  of 
court,  admit  the  lease,  the  entry,  and  the  ouster,  and 
thus  can  only  deny  the  title  of  A.1 

This  action  is  no  longer  in  use.  The  method  of  pro- 
ceeding in  ejectment  is  regulated  by  statute. 

2.  Personal  actions  are  those  which  are  brought  for 
the  specific  recovery  of  goods  and  chattels,  or  for  dam- 
ages for  breach  of  contract,  or  for  damages  arising  from 
other  injuries.2  They  are  divided  into  two  classes.' 

A.  Actions  ex  contractu. 

B.  Actions  ex  delicto. 

A.  Actions  ex  contractu  are  those  arising  from  a  breach 
of  contract.     They  are  of  three  kinds. 
(a).  Assumpsit. 
(b\  Debt, 
(c).  Covenant. 

(a).  Assumpsit  is  the  action  brought  for  the  recovery 
of  damages  for  the  breach  of  a  simple  or  parol  contract. 
Assumpsit  is  of  two  kinds. 

(i).  Special,  or  assumpsit  brought  on  an  express  con- 
tract. 

(2).  General,  or  assumpsit  brought  on  implied  con- 
tracts in  certain  cases.4  The  grounds  of  action  on  a 
general  assumpsit  usually  fall  under  one  of  four  common 
counts,  namely : 5 

[i.]  Indebitatus  assumpsit,  where  the  plaintiff  alleges 
a  debt  and  a  promise  of  payment  made  in  considera- 
tion of  the  debt,  the  promise  being  an  implied  promise. 

[2].  Quantum  meruit,  where  the  plaintiff"  sues  to  re- 
cover for  services  rendered,  as  much  as  he  deserved. 

1  See  3  Bl.  Comm.  300;  Steph.  PI.  *n.  2  Steph.  PI.  *3. 

3  Heard  Civ.  PI.  23. 

4  Bouv.  Law  Diet.,  sub.  Assumpsit,  and  authorities  cited. 
8  Id.,  sub.  Common  Counts  ;  see  3  Bl.  Comm.  160. 


PLEADING.  187 

[3].  Quantum  valebat,  where  the  plaintiff  sues  to  re- 
cover for  goods  sold  and  delivered,  as  much  as  they 
were  worth. 

[4].  Insimul  computassent,  where  the  plaintiff  sues  to 
recover  for  the  balance  of  an  account. 

In  these  four  cases,  the  contract  is  implied  and  not 
expressed  in  terms  by  the  parties.  Thus,  if  A  did  work 
for  B,  without  any  express  contract,  but  B  allowed  A  T 
to  work  for  him  without  remonstrance  and  availed  him- 
self of  the  results  of  his  labor,  A  would  sue  B  on  an 
assumpsit  quantum  meruit.  If  A  ordered  goods  of  B) 
and  there  was  no  agreement  in  regard  to  the  price,  B 
would  sue  A  to  recover  their  value  in  assumpsit 
quantum  valebant. 

(b\  Debt  was  an  action  which  lay  where  there  was  a 
liquidated  i.  e.,  certain  sum  due.  Unless  the  exact 
sum  alleged  in  the  declaration  to  be  due  was  proved 
to  be  due,  the  plaintiff  recovered  nothing.  Thus,  if  A, 
suing  in  debt,  alleged  ten  pounds  as  the  amount  due, 
but  proved  a  claim  of  only  nine  pounds,  judgment  was 
for  the  defendant.1 

(c).  Covenant  was  the  action  brought  to  recover 
damages  for  breach  of  contract  under  seal.9 

O 

B.  Actions  ex  delicto  are  those  which  are  brought  to 
recover  damages  resulting  from  a  tort.  They  are  of 
four  kinds. 

(a).   Trespass, 
(b).   Trover, 
(c).  Replevin, 
(d}.  Case. 

(a).  Trespass  is  the  action  which  lies  for  the  recovery 
of  damages  arising  from  a  trespass.'  (For  trespass  see 
page  152.) 

(6).  Trover  lies  to  recover  damages  against  one  who 

1  Steph.  PL  *i4  ;  3  Bl.  Comm.  154-  *  Id-  J56- 

3  Steph.  PL  *i6. 


1 88  A   REVIEW   IN   LAW   AND   EQUITY. 

has,  without  right,  converted  to  his  own  use,  goods  in 
which  the  plaintiff  has  a  general  or  special  property. 

This  action  originally  lay  against  a  person  who  had 
found  goods  and  who  refused  to  restore  them  to  their 
rightful  owner.  Hence  the  name  trover  (to  find). 
This  action  differs  from  trespass  in  that  the  injury  is 
not  necessarily  forcible,  and  from  replevin  in  that  the 
action  is  for  damages,  and  not  to  recover  possession  of 
the  specific  article. 

The  measure  of  damages  is  the  value  of  the  property 
at  the  time  of  conversion,  with  interest.  A  demand  for 
the  surrender  of  the  goods  is  necessary  to  sustain  an 
action  of  trover.1 

(c).  Replevin  lies  to  regain  the  possession  of  per- 
sonal property  which  has  been  taken  from  the  plaintiff 
unlawfully.  It  was  originally  resorted  to  to  recover 
possession  of  chattels  which  had  been  taken  by  distress 
(the  taking  of  a  chattel  from  a  wrong-doer  into  the 
custody  of  the  party  injured  to  procure  satisfaction  for 
the  wrong  done:  usually  resorted  to  as  a  means  of  col- 
lecting rent  due).  It  may  now  be  used  in  all  cases  of 
illegal  taking.2 

(d\  Case  (trespass  on  the  case)  is  the  action  brought 
to  recover  damages  when  the  other  actions  ex  delicto  do 
not  lie,  as  in  the  case  of  injuries  not  committed  with 
force,  such  as  libel,  or  of  forcible  injury  to  an  intangible 
right,  such  as  the  obstructing  of  a  way,  or  when  the 
tort  is  committed  forcibly,  but  the  injury  is  consequen- 
tial, and  not  immediate.  Thus,  if  A  drops  a  log  on  the 
foot  of  B,  the  proper  action  for  the  injury  is  trespass  ; 
but  if  A  negligently  leaves  a  log  in  B's  way,  over 
which  he  falls,  the  proper  action  is  trespass  on  the  case. 

The  action  arose  from  statute  Westminster  2nd  (13 

1  3  Bl.  Comm.  152  ;  Bouv.  Law  Diet.  ;  2  Chit.  PI.  618  (i6th  Am. 
Ed.) ;   i  Id.  *i76. 

2  3  Bl.  Comm.  145  ;  Bouv.  Law  Diet.  ;  2  Chit.  PI.  591  (i6th  Am.  Ed.). 


PLEADING.  189 

Edward  I.,  1287),  which  provided  that  if  any  cause  of 
action  arose  for  which  there  was  no  remedy,  a  new  writ 
was  to  be  framed  by  the  clerks  of  chancery  analogous  to 
those  already  in  existence,  which  were  adapted  to  sim- 
ilar causes  of  action  (in  consimili  casu).1 

ACTIONS  (HOW  COMMENCED). 

Actions,  at  common  law,  were  ordinarily  commenced 
by  writ  and  summons. 

A  writ  is  a  mandatory  precept  or  letter,  issued  by  a 
court  of  competent  jurisdiction,  addressed  to  the  sheriff 
of  the  county  where  the  injury  is  alleged  to  have  been 
committed,  containing  a  condensed  statement  of  the 
cause  of  complaint,  and  requiring  him  to  command  the 
defendant  to  satisfy  the  claim,  and  on  his  failure  to 
comply,  to  summon  him  to  appear  in  the  court  from 
which  the  writ  was  issued  to  account  for  his  non-compli- 
ance.2 

The  summons  contains  substantially  the  same  mat- 
ter as  the  writ,  and  is  served  on  the  defendant  person- 
ally, or  by  leaving  it  at  his  last  usual  place  of  abode. 
The  writ  and  summons  state  the  time  at  which  the 
defendant  is  to  appear  in  court,  and  this  time  is  called 
the  return  day  of  the  writ. 

On  the  return  day,  the  plaintiff  enters  the  writ,—i.  e., 
deposits  it  with  the  clerk  of  the  court  from  which  it  was 
issued,  by  whom  the  suit  is  entered  on  the  records  of 
the  court.  On  the  return  day,  or  within  a  certain  time 
thereafter,  the  defendant  must  appear,  either  in  person 
or  by  counsel. 

The  appearance  consists  in  requesting  the  clerk  to 
enter  on  the  records  the  attorney's  appearance  for  the 
defendant.  If  the  defendant  fails  to  appear  within  the 

1  See  Bouv.  Law  Diet.,  sub.  Case  ;  Steph.  PI.  "17  ;  3  Bl.  Comm.  122  ; 
2  Chit.  PI.  *i42  (ifith  Am.  Ed.). 

2  See  Burrill  Law  Diet.  ;  Gould  PI.  15  ;  Heard  Civ.  PI.  19. 


190  A   REVIEW   IN   LAW   AND   EQUITY. 

proper  time,  he  is  defaulted,  and  judgment  entered  for 
the  amount  claimed  by  the  plaintiff.  On  the  entry  of 
the  case  by  the  plaintiff  and  the  appearance  by  the  de- 
fendant the  pleadings  begin.1 

1  See  Heard  Civ.  PL  33,  34.     Consult  works  on  Local  Practice. 


CHAPTER    XXX. 

THE  PLEADINGS. 

The  pleadings  consist  of 

1.  The  Declaration. 

2.  The  Demurrer  or  Plea. 

3.  The  Replication. 

4.  The  Rejoinder,  Surrejoinder,    Rebutter,   Surre- 
butter, etc. 

1.  The  declaration  is  a  statement  of  the  plaintiff's 
cause  of  action.1 

2.  If,  assuming  the  plaintiff's  allegations  to  be  true, 
the  defendant  thinks  that,  as  a  matter  of  law,  there  is  no 
ground  for  action,  he  demurs  to  the  declaration, — /'.  e., 
declines  to  proceed  further  until  it  has  been  decided 
whether,  as  a  matter  of  law,  the  plaintiff  is  entitled  to 
any  relief.     A  demurrer  thus  raises  an  issue  of  law. 
An  issue  is  a  point  affirmed  on  one  side  and  denied  on  the 
other? 

Demurrers,  as  regards  their  nature,  are  of  two  kinds. 

(a).  Demurrers  to  matters  of  substance. 

(b\  Demurrers  to  matters  of  form. 

Demurrers,  as  regards  their  form,  are  of  two  kinds. 

(a).  General,  or  those  excepting  to  the  sufficiency  of 
the  declaration  in  general  terms. 

(b).  Special,  or  those  specifying  the  particular  ground 
of  exception. 

A  general  demurrer  is  sufficient  to  a  matter  of  sub- 
stance ;  a  special  demurrer  is  necessary  to  a  matter  of 
form.9 

1  Steph.  PI.  *2g.          *  Bouv.  Law  Diet.          3  Steph.  PI.  *44,  *I4<>. 

(190 


192  A   REVIEW   IN   LAW   AND   EQUITY. 

If  the  defendant  does  not  demur,  he  is  obliged  to 
answer  the  declaration  by  some  matter  of  fact.  In  so 
doing  he  is  said  to  plead.  A  plea  is  the  defendant's 
answer  by  matter  of  fact? 

Pleas  are  divided  into  two  classes. 

A.  Dilatory  pleas. 

B.  Peremptory  pleas. 

A.  Dilatory  pleas  are  those  tending  to  defeat  the 
action  on  the  ground  that  it  is  brought  before  the 
wrong  court,  or  by  or  against  the  wrong  persons,  or  in 
an  improper  form. 

Dilatory  pleas  are  divided  into  three  classes. 

(a).  Pleas  to  the  jurisdiction,  by  which  the  defendant 
excepts  to  the  jurisdiction  of  the  court. 
.  (b).  Pleas  in  suspension  of 'the  action,  which  show  some 
ground  for  not  proceeding  in  the  suit  at  present,  such 
as  the  excommunication  of  the  plaintiff. 

(c).  Pleas  in  abatement,  or  those  showing  some  mat- 
ter of  fact  tending  to  impeach  the  correctness  of  the 
writ  or  declaration,  which  defeats  the  action  for  the 
present,  but  which  does  not  debar  the  plaintiff  from  re- 
commencing it  in  a  different  way.  Among  the  pleas  in 
abatement,  six  are  most  important.2 

[i].    Coverture  of  the  plaintiff.3 

[2].  Death  of  the  plaintiff  either  before  or  during  the 
commencement  or  pendency  of  the  suit.4 

[3].  Infancy  of  the  plaintiff,  unless  he  appears  by 
guardian  or  next  friend.5 

[4].  Misjoinder,  or  the  joinder  of  improper  plaintiffs.6 

[5].  Non-joinder  of  all  the  parties  interested,  either  as 
plaintiffs  or  defendants.7 

[6].  Misnomer  of  either  plaintiff  or  defendant.8 

1  Steph.  PI.  *45  et  seq.  *  Bouv.  Law  Diet.,  sub.  Abatement. 

3  i  Chitty  PI.  439.  4  i  Arch.  Civ.  PI.  304. 

5  3  Bl.  Comm.  301.  6  i  Chit.  PI.  8. 

7  i  Arch.  Civ.  PI.  309 ;  i  Chit.  PI.  12.  8  Id.  451. 


THE   PLEADINGS. 


193 


B.  Peremptory  pleas,  or  pleas  in  bar,  are  those 
which  deny  that  the  plaintiff  has  any  cause  of  action. 
They  are  divided  into  two  classes.1 

(a).  Traverses,  or  pleas  which  deny  all,  or  some 
essential  parts  of  the  averments  of  fact  contained  in 
the  declaration. 

(b\  Pleas  by  way  of  confession  and  avoidance,  which, 
while  admitting  the  averments  of  the  declaration, 
allege  new  facts  which  obviate  or  repel  the  legal  effect 
of  the  averments  of  the  declaration.  Such  a  plea,  in  an 
action  to  recover  damages  in  trespass,  would  be  a  re- 
lease, or  payment. 

A  traverse  at  once  raises  an  issue  of  fact. 

3.  If  the  defendant  makes  a  dilatory  plea,  or  a  plea 
by  way  of  confession  and  avoidance,  the  plaintiff  can  de- 
mur  to    the    plea,  or,  in    turn,  can  plead  to  it  by  a 
traverse,  or  by  way  of  confession  and  avoidance. 

Such  pleading  on  the  part  of  the  plaintiff  is  called  the 
replication? 

4.  A    replication    by  way   of  demurrer   or   traverse 
results  in  an  issue ;  but  if  it  be  by  way  of  confession 
and  avoidance,  the  defendant  can,  in  his  turn,  demur, 
or  plead  a  traverse,  or  by  way  of  confession  and  avoid- 
ance, to  the  plaintiff's  replication.  Such  pleadingly  the 
defendant  is  called  the  rejoinder.    In  the  same  way  the 
defendant's  rejoinder  may  be  followed  by  the  plaintiff's 
surrejoinder,   the    plaintiff's    surrejoinder   by   the   de- 
fendant's  rebutter,    the    defendant's    rebutter   by   the 
plaintiff's  surrebutter,  etc. 

This  is  the  simple  and  direct  course  which  the  plead- 
ing takes.  It  is  sometimes  varied  by  pleas  puts 
darrcign  continuance.  These  are  pleas  put  in  after  issue 
has  been  joined,  for  the  purpose  of  introducing  new 
matter,  or  matter  which  has  come  to  the  knowledge  of 
the  party  pleading  it  subsequent  to  the  joinder  of  issue. 

1  Steph.  PI.  *52  ft  seq.  8  Id.  *58  et  seq. 


194  A   REVIEW   IN   LAW   AND   EQUITY. 

The  words  "  puis,  etc.,"  mean  "since  the  last  con- 
tinuance." By  an  ancient  practice,  when  an  adjourn- 
ment of  the  proceedings  occurred  for  any  purpose,  an 
entry  was  made  stating  when  the  parties  were  to  come 
into  court  again,  and  these  entries  were  called  continu- 
ances. Therefore  a  plea,  setting  forth  any  matter  arising 
since  the  last  continuance,  was  given  this  name.  Such 
a  plea  would  be  that  of  a  release  given  by  the  plaintiff 
since  the  beginning  of  the  action.1 

Demand  of  oyer  occasionally  arises  in  the  course  of 
pleading.2 

When  either  party  to  an  action  alleges  any  deed,  he 
is  obliged  to  make  profert  of  it, — i.  e.,  produce  it  in 
court  with  the  pleading  in  which  it  is  alleged.  When 
the  pleading  was  oral,  the  deed  was  actually  produced 
in  court.  When  the  pleadings  were  embodied  in  writ- 
ing, to  make  profert  was  merely  to  allege  that  the  party 
showed  the  deed  in  court,  it  being  actually  retained  in 
his  own  custody^When  profert  is  thus  made,  the  other 
party,  before  he  pleads,  can  demand  oyer, — i.  e.,  can 
demand  to  hear  the  instrument  read.  When  the  plead- 
ings were  oral,  the  deed  was  actually  read.  Now  the 
practice  is  for  the  party  demanding  oyer  to  send  a  note 
to  the  attorney  of  the  party  making  profert,  containing 
the  demand.  On  this,  the  latter  is  obliged  to  give  the 
former  a  copy  of  the  deed. 

When  the  parties  are  at  an  issue  of  fact,  the  steps 
in  the  proceedings  are  as  follows : 

1.  The  trial. 

2.  The  verdict. 

3.  Means  resorted  to  for  setting  aside  the  verdict. 

4.  Judgment. 

5.  Execution. 

I.  The  trial  is  the  decision  of  the  question  of  fact. 

1  Steph.  PI.  "64  ;  2  Chit.  PI.  *688  (i6th  Am.  Ed.). 

2  Steph.  PI.  *66  et  seq. 


THE   PLEADINGS.  195 

There  are  four  methods  of  trial  at  common  law,  the 
first  of  which  only  is  in  common  use.1 
(a).  Trial  by  jury, 
(b).  Trial  by  the  record, 
(c).  Trial  by  certificate, 
(d).  Trial  by  witnesses. 

(ff).  Trial  by  record  is  resorted  to  when  the  issue  is 
the  existence  of  a  record.  Here  the  question  is  deter- 
mined by  an  examination  of  the  record  by  the  court. 

(c).  Trial  by  certificate  was  used  chiefly  in  the  action 
of  dower,  in  which  the  tenant  may  plead  that  the  de 
mandant  "  was  never  accoupled  to  her  alleged  husband 
in  lawful  matrimony."  On  this  issue,  the  court  direct- 
ed that  it  be  tried  by  the  diocesan  of  the  place  where 
the  church  in  which  the  marriage  was  alleged  to  have 
taken  place  was  located,  and  that  the  result  be  certified 
to  the  court  at  an  appointed  day. 

(d}.  Trial  by  witnesses  was  used  in  issues  arising  on 
the  death  of  the  husband  in  actions  of  dower.  The 
court  directed  that  both  parties  produce  their  witnesses 
in  court,  when  they  were  examined  by  the  judges,  who 
decided  the  issue  without  the  intervention  of  a  jury. 

2.  The  verdict  is  the  unanimous  decision  made  by  a 
jury  and  reported  to  the  court,  on  the  matters  lawfully 
submitted  to  it  in  the  trial  of  a  cause.     Verdicts  are  of 
two  kinds.8 

(a).  General,  by  which  the  jury  pronounces  either  in 
favor  of  the  plaintiff  or  defendant. 

(£).  Special,  in  which  the  jury  finds  that  certain  facts 
exist,  and  leaves  the  application  of  the  law,  and  the 
conclusion  to  be  drawn  from  these  facts,  to  the  court. 

3.  Upon    the   rendering   of  the   verdict,   the   party 
against  whom  it  is  given  may  resort  to  one  or  more  of 
five  measures  to  avoid  its  effect.' 

1  Steph.  PI.  *77  ft  seq.  !  Bouv.  Law  Diet. 

3  Steph.  PI.  *94  et  seq. 


196  A    REVIEW   IN   LAW   AND   EQUITY. 

(a).  He  may  move  for  a  new  trial  on  one  of  six 
grounds. 

[i].  That  the  judge  misdirected  the  Jury. 

[2].  That  the  judge  admitted  or  rejected  evidence  con- 
trary to  law. 

[3].  That  the  verdict  was  contrary  to  the  evidence  and 
the  weight  of  the  evidence. 

[4].  That  a  new  and  material  fact  has  come  to  light 
since  the  trial. 

[5].  That  the  damages  are  excessive. 

[6].  That  the  jury  was  guilty  of  misconduct,  such  as 
casting  lots  to  determine  its  verdict. 

(6).  The  defendant  may  move  in  arrest  of  judgment, — 
i.  e.,  that  judgment  for  the  plaintiff  be  withheld,  on  the 
ground  that  there  is  some  error  appearing  on  the  face 
of  the  record.  The  defect  must  be  one  of  substance,  and 
not  of  form  merely. 

(c).  The  plaintiff  may,  in  some  cases,  move  for  judg- 
ment, non  veredicto  obstante, — /.  e.,  without  regard  to 
the  verdict.  This  motion  is  made  when  the  plaintiff, 
on  a  re-examination  of  the  pleadings,  conceives  some 
of  the  pleadings  of  the  defendant  to  be  bad  in  substance, 
which  might  have  been  made  the  subject  of  de- 
murrer. The  verdict,  having  merely  decided  that  the 
plea  was  true  in  point  of  fact,  the  insufficiency  of  the 
plea  in  point  of  law  is  not  affected  thereby,  and  the 
question  of  insufficiency  can  be  raised  by  this  motion. 

(d}.  A  motion  for  a  repleader  may  be  made  when  the 
defeated  party  conceives  that  the  issue  joined  and  de- 
cided by  the  verdict  was  an  immaterial  issue. 

(e).  The  defeated  party  may  move  for  a  venire  facias 
de  novo  (the  name  of  the  writ  by  which  jurors  are  sum- 
moned to  attend),  when,  because  of  some  irregularity 
or  defect  in  the  proceedings  on  the  first  venire,  or  on 
the  trial,  the  proper  effect  of  the  writ  (venire  facias]  has 
been  frustrated,  or  the  verdict  become  void  in  law ;  as 


THE   PLEADINGS.  197 

when  the  jury  has  been  improperly  chosen,  or  has  given 
a  defective  verdict.  The  effect  of  the  motion,  if  grant- 
ed, is  practically  that  of  a  motion  for  a  new  trial. 

4.  Judgment  is  the  sentence  of  the  law,  pronounced 
by  the  court,  as  a  result  of  proceedings  instituted  for 
the  redress  of  an  injury.1     The  nature  of  the  judgment 
depends  wholly  upon  the  nature  of  the  issue  and  its 
decision  by  the  jury. 

5.  On  the  rendering   of  judgment  in  favor   of  the 
plaintiff,  he  is  entitled  to  an  execution  against  the  de- 
fendant.    An   execution  is  a  writ  which   directs  and 
authorizes  the  officer  to  carry  into  effect  the  judgment. 
It  directs  him  to  take  possession  of  the  property  of  the 
defendant  (and  in  some  cases,  in  want  of  property,  to 
arrest  the  defendant  'and  commit  him  to  jail)  and  sell 
the  same  for  the  satisfaction  of  the  judgment.2 

If,  upon  an  examination  of  the  whole  record,  it  ap- 
pears that  judgment  has  been  given  for  one  of  the 
parties,  when  it  ought  to  have  been  given  for  the  other, 
this  constitutes  error  in  law.  The  remedy  is  a  writ  of 
error,  requiring  that  the  record  be  sent  to  a  court  of 
appellate  jurisdiction,  that  the  error  may  be  corrected. 
The  error  must  be  one  of  substance,  however,  and  not 
merely  of  form.3 

1  3  Bl.  Comm.  sqg.  *  Bouv.  Law  Diet. 

3  Steph.  PI.  *iig. 


CHAPTER  XXXI. 

RULES   OF   PLEADING. 

THE  rules  which  govern  pleading  may  be  divided 
into  seven  classes. 

1.  Those  tending  to  the  production  of  an  issue. 

2.  Those  tending  to  produce  a  material  issue. 

3.  Those  tending  to  produce  a  single  issue. 

4.  Those  tending  to  produce  a  certain  issue. 

5.  Those  tending  to  prevent  obscurity  and  confusion. 

6.  Those  tending  to  prevent  prolixity  and  delay. 

7.  Certain  miscellaneous  rules. 

1.  There  are  three  rules  in  this  class.1 

(a}.  Alter  the  declaration,  the  parties  at  each  stage 
must  demur,  or  plead,  either  by  way  of  traverse  or  of 
confession  and  avoidance. 

(b\  Upon  a  traverse,  issue  must  be  tendered. 

(c\  When  issue  is  tendered,  it  must  be  accepted. 

2.  In  this  class  the  general  rule  is  that  all  pleadings 
must  contain  matter  pertinent  and  material. 

Among  the  special  rules,  two  are  especially  important.2 
(a).  A  traverse  must  not  be  taken  on  an  immaterial 
point. 

(£).  A  traverse  must  not  be  too  large,  or  too 
narrow, — i.  e.,  a  traverse  of  an  allegation  should  take  in 
no  more  of  that  allegation  than  is  material,  nor  should 
it  omit  any  material  portion  of  the  allegation. 

3.  Two  rules  are  of  chief  importance.3 

(a}.  Pleadings   must   not   be   double.     This   rule,  as 

1  Steph.  PI.  *I37  et  seq.  2  Id.  *24O  et  seq. 

3  Steph.  PI.  *25i  et  seq. 
(198) 


RULES  OF  PLEADING.  199 

applied  to  the  declaration,  means  that  it  must  not,  in 
support  of  a  single  demand,  allege  several  distinct  mat- 
ters, by  any  one  of  which  that  demand  is  sufficiently 
supported.  In  regard  to  the  subsequent  pleadings,  the 
rule  means  that  none  of  them  is  to  contain  several  dis- 
tinct answers  to  the  pleading  which  precedes  it. 

The  effect  of  this  rule  is  qualified  by  allowing  the 
plaintiff  to  unite  several  counts  in  the  same  declaration. 
Consequently  the  defendant  can  offer  different  pleas, 
according  to  the  nature  of  the  different  counts. 

As  a  rule,  the  plaintiff  can  join,  in  one  declaration, 
claims  arising  ex  contractu,  such  as  a  debt  on  a  bond 
and  a  debt  on  a  simple  contract,  and  claims  arising  ex 
delicto,  as  in  the  case  of  several  trespasses ;  but  claims 
ex  contractu  and  ex  delicto,  as  a  debt  and  a  trespass, 
cannot  be  joined.1 

The  parts  of  the  declaration  in  which  the  different 
causes  of  action  are  stated,  are  called  counts. 

(b).  It  is  not  allowable  to  plead  and  demur  to  the 
same  matter. 

4.  In  this  class  there  are  seven  rules.2 

(a).  The  pleadings  must  have  certainty  of  place ',— 
i.  e.,  the  venue  of  the  action,  namely,  the  county  in  which 
it  is  to  be  tried,  must  be  stated  in  the  declaration. 

Actions,  with  regard  to  venue,  are  divided  into  two 
classes.3 

(i).  Local,  or  those  the  cause  of  which  could  have 
arisen  in  some  particular  county  only,  as  any  of  the  real 
actions. 

(2).  Transitory,  or  those  the  cause  of  which  might 
have  arisen  anywhere. 

In  local  actions,  the  venue  must  be  truly  laid, — i.  e., 
the  action  must  be  brought  in  the  county  where  the 
cause  of  action  arose. 

1  i  Chit.  PI.  *22i  et  seq.  (i6th  Am.  Ed.)- 

*  Steph.  PI.  *27Q.  *  Id"  *289- 


2OO  A   REVIEW   IN   LAW   AND   EQUITY. 

In  transitory  actions,  the  venue  may  be  laid  in  what- 
ever county  the  plaintiff  chooses.  The  matter  of  venue 
is  now  largely  regulated  by  statute. 

(b).  The  pleadings  must  have  certainty  of  time.  In 
personal  actions,  the  day,  month,  and  year  when  each 
traversable  fact  occurred  must  be  alleged. 

As  a  rule,  the  time  is  not  regarded  as  being  material 
to  the  issue,  so  that  the  pleader  is  not  obliged  to  prove 
the  time  as  alleged. 

(c).  The  pleadings  must  specify  quality,  quantity,  and 
value. 

(d}.  The  pleadings  must  specify  the  names  of  parties. 

(e).  The  pleadings  must  show  title  in  the  party  bring- 
ing the  suit. 

(/).  The  pleadings  must  show  authority, — i.  e.,  when 
a  party  justifies  under  a  writ,  warrant,  or  precept,  or 
any  other  authority  whatever,  he  must  set  it  forth  par- 
ticularly in  his  pleadings. 

(<£")•  1°  general,  whatever  is  alleged  in  pleading,  must 
be  alleged  with  certainty. 

5.  There  are  eight  rules  in  this  class.1 

(a).  Pleadings  must  not  be  insensible,  or  repugnant, — 
i.  e.,  they  must  be  intelligible,  and  consistent  with  them- 
selves. 

(b\  Pleadings  must  not  be  ambiguous,  or  doubtful  in 
meaning,  and  when  two  constructions  present  them- 
selves, that  one  shall  be  adopted  which  is  most  un- 
favorable to  the  party  pleading. 

(c).  Pleadings  must  not  be  argumentative, — i.  e.,  they 
must  state  the  facts  in  an  absolute  form,  and  not 
leave  them  to  be  collected  by  inference  and  argument. 

(d\  Pleadings  must  not  be  hypothetical,  or  in  the 
alternative. 

(e).  Pleadings  must  not  be  by  way  of  recital,  but 
must  be  positive  in  form. 

1  Steph.  PI.  *377- 


RULES   OF   PLEADING.  2OI 

(/).  Things  are  to  be  pleaded  according  to  their  legal 
effect  and  operation. 

(g).  Pleadings  should  have  their  proper  formal  com- 
mencements and  conclusions. 

(//).  Pleading  which  is  bad  in  part  is  bad  altogether. 

6.  There  are  three  rules  under  this  class.1 

(a).  There  must  be  no  departure  in  the  pleadings.  A 
departure  occurs  when,  in  any  pleading,  the  party  de- 
serts the  ground  which  he  took  in  the  last  antecedent 
pleading,  and  resorts  to  another. 

(b}.  When  a  plea  amounts  to  the  general  issue,  it 
should  be  so  pleaded. 

(c).  Surplusage  is  to  be  avoided.  By  surplusage  is 
meant  unnecessary  matter  of  whatever  description. 

7.  There  are  seven  rules  in  this  class.3 

(a).  The  declaration  must  be  conformable  to  the 
writ. 

(&).  The  declaration  should  have  its  proper  commence- 
ment, and  should,  in  conclusion,  lay  damages. 

(c).  Pleas  must  be  pleaded  in  due  order. 

(d}.  Pleas  in  abatement  must  give  the  plaintiff  a  better 
writ,  or  declaration, — i.  e.,  the  plea  must  correct  the 
mistake  of  the  plaintiff  so  as  to  enable  him  to  avoid 
the  same  mistake  in  framing  a  new  writ,  or  declaration. 

(e).  Dilatory  pleas  must  be  pleaded  at  a  preliminary 
stage  in  the  suit. 

(/).  In  all  pleadings  where  a  deed  is  alleged  under 
which  the  party  claims  or  justifies, profert  of  such  deed 
must  be  made. 

(£•).  All  pleadings  ought  to  be  true. 

1  Steph.  PI.  *4io  et  seq.  *  Id.  *426  et  seq. 


CHAPTER   XXXII.  . 

PLEADING   IN  EQUITY. 

Pleading  in  equity  is  begun  by  a  bill,  which  is  a 
complaint  addressed  to  the  Chancellor,  containing  the 
names  of  the  parties,  a  statement  of  the  facts  on  which 
the  plaintiff  relies,  and  the  allegations  which  he  makes, 
with  an  averment  that  the  acts  complained  of  are 
contrary  to  equity,  and  a  prayer  for  relief  and  for 
proper  process.1 

A  bill  in  equity  usually  consists  of  nine  parts.2 

1.  The  address  to  the  court  having  jurisdiction. 

2.  Names  of  the  plaintiffs. 

3.  Statement  of  the  plaintiffs'  case. 

4.  A  general  charge  of  confederacy  on  the  part  of  the 
defendants. 

5.  Allegations  of  the  pretences  of  the  defendants. 

6.  Clause  of  jurisdiction. 

7.  Prayer  that  the  defendants  may  answer  the  plain- 
tiffs' interrogatories. 

8.  Prayer  for  relief. 

9.  Prayer  te*  process. 

Upon  the  filing  of  the  bill,  a  writ  of  subpoena  is  issued 
against  the  defendants,  commanding  them  to  appear 
and  answer  the  plaintiffs'  interrogatories,  and  to  submit 
to  such  a  decree  as  the  court  may  make. 
Defence. — The  forms  of  defence  are  four.3 
i.  Disclaimer,  which  denies  that  the  defendants  have 
any  interest  in  the  matter. 

1  Adams  Eq.  *soi  et  seq.  2  Mitf.  PI.  49  (sth  Ed.)- 

3  Adams  Eq.  *332. 
(202) 


PLEADING  IN   EQUITY.  203 

2.  Demurrer,  as  in  pleading  at  law. 

3.  Plea,  which  avers  some  matter  of  avoidance,  or 
denies  some  one  allegation  of  the  bill,  and  rests  the  de- 
fence on  that  issue. 

4.  Answer,  which  puts  on  record  the  whole  case  of 
the  defendants,  whether  by  way  of  demurrer,  of  avoid- 
ance, or  of  denial,  and  raises  one  or  more  issues,  as  the 
case  may  be. 

At  the  hearing  of  the  cause,  the  pleadings  and  evi- 
dence are  offered,  and  the  court  makes  its  decree.  If 
the  defendant  appears,  it  is  an  ordinary  decree.  If  he 
does  not  appear  at  the  hearing,  it  is  a  decree  by  default. 
If  he  has  never  appeared  in  the  suit,  or  if,  after  appear- 
ing, he  has  neglected  to  answer,  it  is  a  decree  pro  con- 
fessed 

RULES  OF  PLEADING. 

There  are  four  chief  rules  of  pleading  relative  to  the 
bill. 

1.  It  must  state  a  consistent  case  on  behalf  of  all  the 
plaintiffs ;  otherwise  the  misjoinder  will  be  fatal  to  the 
suit.8 

2.  It  must  state  the  case  in  direct  terms,  and  with 
reasonable  certainty? 

3.  The   relief   asked   should   be   pointed   out   with 
reasonable  clearness? 

4.  The  bill  should  not  be  multifarious.    Multifarious- 
ness  is  of  two  kinds.5 

(a).  When  the  plaintiff  has  several  distinct  claims 
against  the  same  defendant  and  prays  relief,  in  a  single 
suit,  in  regard  to  all. 

(ft).  When  a  plaintiff,  having  a  valid  claim  against 
one  defendant,  joins  another  person  as  defendant  in  the 
same  suit,  with  a  large  part  of  which  he  is  unconnected. 

1  Adams  Eq.  *33i.  *  Id.  *3O2.  3  Id.  *3<>3  and  note. 

4  Id.  *3og.  5  Id.  *3og  et  seq. 


204  A   REVIEW   IN   LAW  AND   EQUITY. 

There  are  five  chief  rules  of  pleading  in  regard  to 
the  defence.1 

1.  The//ra  must  raise  a  single  issue. 

2.  The  averments   of  a  plea  must  have  the  same 
certainty  as  those  of  a  plea  at  law. 

3.  The  plea  must  be  verified  by  the  defendant's  oath. 

4.  In  case  an  answer  is  filed,  which  is  the  ordinary 
proceeding,  it  must  state  the  defendant's  case  in  direct 
terms  and  with  reasonable  certainty,  and  must  answer 
on  oath  as  to  all  facts  material  to  the  plaintiff's  case. 

5.  The  defendant  must  answer  distinctly  and  com- 
pletely, without  needless  prolixity,  and  to  the  best  of 
his  information  and  belief. 

ADDITIONAL  BILLS. 

Five  bills  in  equity,  as  having  special  reference  to 
pleading  in  equity,  are  mentioned  here. 

1.  A  bill  of  revivor  is  a  bill  brought  to  continue  a 
suit  which  has  abated  before  its  consummation,  as  by 
death  of  a  plaintiff.2 

2.  A  bill  of  review  is  one  brought  to  have  a  decree 
of  the  court  reviewed,  altered,  or  reversed.     It  must  be 
brought  on  one  of  two  grounds.3 

(a).  For  error  in  point  of  law. 

(b).  For  some  new  matter  of  fact,  discovered  since 
the  decree,  and  which  could  not,  with  reasonable  dili- 
gence, have  been  discovered  before. 

3.  A  bill  in  the  nature  of  a  bill  of  revivor  is  used  when 
the  death  of  a  party,  whose  interest  is  not  determined 
by  his  death,  is  attended  with  such  a  transmission  of 
his  interest  that  the  title  to  it,  as  well  as  the  person  en- 
titled, may  be  litigated  in  a  court  of  equity.4 

4.  A  supplemental  bill  is  one  brought  in  addition  to 

1  Adams  Eq.  *34o,  *342,  '344. 

8  Mitf.  Ch.  PI.  83  ;  Story  Eq.  PI.  §  369. 

3  Id.  §§  403.  404.  4  Id.  §  377,  378. 


PLEADING   IN   EQUITY.  205 

the  original  bill,  to  supply  some  defect  which  cannot  be 
remedied  by  amendment? 

5.  A  bill  in  the  nature  of  a  supplemental  bill  is  resort- 
ed to  when  the  interest  of  the  plaintiff  or  defendant 
wholly  terminates,  and  the  same  interest  rests  in 
another  person  not  claiming  under  him.* 

1  Story  Eq.  PI.  §  332.  *  Id.  §  345. 


CHAPTER  XXXIII. 

EVIDENCE. 

Evidence  includes  all  the  means  by  which  any  alleged 
matter  of  fact,  the  truth  of  which  is  submitted  to  in- 
vestigation, is  proved  or  disproved.1 

Proof  denotes  the  effect  produced  by  evidence. 

There  are  seven  so-called  instruments  of  evidence, — 
i.  e.,  means  through  which  evidence  is  obtained.2 

1.  Judicial   notice.      Courts    take    notice    of    many 
things  without  the  introduction  of  evidence  regarding 
them,  such  as  the  extent  of  their  own  jurisdiction,  the 
local  divisions  of  their  own  countries,  etc. 

2.  Public  records,  as  the  statutes. 

3.  Judicial  writings,  as  depositions. 

4.  Public  documents,  such  as  those  printed  by  the 
authority  of  Congress. 

5.  Private  writings,  as  deeds  and  wills. 

6.  Testimony  of  witnesses. 

7.  Personal  inspection  by  a  jury,  as  when  a  view  of 
a  locality  is  taken. 

Evidence  may  be  divided  into  three  classes.' 
I.  Direct  evidence. 
II.  Circumstantial  evidence. 
III.  Presumptive  evidence. 

I.  Direct  evidence  is  that  means  of  proof  which  tends 
to  show  the  existence  of  a  fact,  without  the  intervention 
of  any  other  fact*  as  when  A  testifies  that  he  saw  B 
strike  C. 

1  i  Greenl.  Ev.  §  i.  3  Bouv.  Law  Diet.,  sub.  Evidence. 

8  i  Greenl.  Ev.  §§  13,  14.  4  Bouv.  Law  Diet.,  sub.  Evidence. 

(206) 


EVIDENCE.  207 

II.  Circumstantial  evidence  is  that  meana  of  proof 
which  tends  to  prove  a  disputed  fact,  by  proof  of  other 
facts  which  have  a  legitimate  tendency  to  lead  the 
mind  to  the  conclusion  that  the  fact  which  is  sought  to 
be  proved  does  exist.1     Thus,  if  the  tracks  of  a  horse 
are   found    in    the    snow,  this   circumstance    furnishes 
grounds  for  concluding  that  a  horse  has  at  some  time 
passed  over  the  road.     Presumptive  evidence  is  some- 
times used  as  synonymous  with  circumstantial,  but  all 
presumptive  evidence  is  not  circumstantial,   as  many 
presumptions  arise  from  arbitrary  rules,  not  as  logical 
inferences. 

Circumstantial  evidence  is  of  two  kinds." 

1.  Certain. 

2.  Uncertain. 

i.  Certain  circumstantial  evidence  is  such  that  the 
fact  sought  to  be  established  necessarily  follows  from 
it :  thus,  if  a  body  be  found,  with  a  knife  in  the  heart,  the 
conclusion  that  death  resulted  from  violence  is  certain. 

(2).  Uncertain  circumstantial  evidence  is  such  that 
the  fact  sought  to  be  established  does  not  necessarily 
follow  from  it :  thus,  in  the  case  just  mentioned,  the  fact 
that  the  man  was  murdered  would  not  necessarily 
follow  from  the  knife's  being  in  the  heart. 

III.  Presumptive  evidence  is  that  means  of  proof 
which  shows  the  existence  of  one  fact  by  proof  of  the 
existence  of  others  from  which  the  existence  of  the 
first  fact  may  be  inferred.5 

Presumptions  are  divided  into  two  classes.4 

1 .  Presumptions  of  law. 

2.  Presumptions  of  fact. 

I.  Presumptions  of  law  are  those  which  arise  in 
certain  cases  by  force  of  the  rules  of  law,  which  direct 
an  inference  to  be  drawn  upon  the  proof  of  certain  facts. 

1  Bouv.  Law  Diet.;  see  i  Starkie  Ev.  478.     *  i  Greenl.  Ev.  §  I3a. 
3  Bouv.  Law  Diet.,  sub.  Evidence.  4  I  Greenl.  Ev.  §  14  etsej. 


2O8  A   REVIEW   IN   LAW   AND   EQUITY. 

Presumptions  of  law  are  divided  into  two  classes. 
(a).  Indisputable  presumptions. 
(6).  Disputable  presumptions. 

(a).  Indisputable  presumptions  are  those  which  admit 
of  no  averment  or  proof  to  the  contrary,  as  that  a  man 
is  supposed  to  contemplate  the  natural  consequences  of 
his  own  acts,  or  that  an  infant  under  the  age  of  seven 
cannot  commit  a  felony. 

(b\  Disputable  presumptions  are  those  in  conse- 
quence of  which  a  fact  is  inferred as  existing,  until  some- 
thing is  offered  to  show  the  contrary,  as  that  a  man  is 
presumed  to  be  innocent  until  he  is  proved  to  be 
guilty,  sane  until  proved  insane,  etc. 
A^2.  Presumptions  of  fact  are  the  natural  presump- 
/  tions  which  appear,  from  common  experience,  to  arise 
from  the  particular  circumstances  of  any  case.1  Such  a 
presumption  would  be  the  inference  of  guilt  drawn  from 
finding  a  knife  with  a  broken  blade  in  the  pocket  of  a 
prisoner,  if  the  other  part  of  the  blade  was  found  stick- 
ing in  the  window  of  a  house  which  had  been  entered 
through  the  window  in  question. 

RULES   GOVERNING  THE   PRODUCTION  OF  TESTIMONY. 

There  are  four  general  rules  under  this  head.' 

I.  The  evidence  must  correspond  to  the  allegations  and 
be  confined  to  the  point  at  issue. 

II.  //   is  sufficient  if  the  substance  of  the  issue  be 
proved.     It  follows  that  any  departure  from  the  sub- 
stance in  the  evidence  introduced  is  fatal.     Such  a  de- 
parture is  termed  a   variance? — /.  e.,  a   disagreement 
between  the  allegations  and  the  proof,  in  some  matter 
which,  in  point  of  law,  is  essential  to  the  support  of  the 
charge  or  claim. 

III.  The  obligation  of  proving  any  fact  lies  upon  the 

1  Bouv.  Law  Diet.,  sub.  Evidence  ;  i  Starkie  Ev.  27. 

*  i  Greenl.  Ev.  §  50  et  seq.  3  Id.  g  63  ;  2  Rice  Ev.  660. 


EVIDENCE.  209 

party  who  asserts  the  affirmative  of  the  issue, — i.  e.,  the 
burden  of  proof 'lies  upon  the  party  holding  the  affirm- 
ative. 

IV.  The  best  evidence  must  be  produced.  This  rule 
leads  to  another  division  of  evidence  into  ' 

1.  Primary  evidence. 

2.  Secondary  evidence. 

1.  Primary  evidence    is   the   best  possible   evidence. 
Thus,  the  best  evidence  of  a  contract  in  writing  is  the 
writing  itself. 

2.  Secondary  evidence  includes   all   evidence  other 
than   primary,  as  parol  evidence  of  the  contents  of  a 
written  instrument. 

Rule  IV.  is  applied  most  frequently  to  cases  relating 
to  the  substitution  of  oral  for  zvritten  evidence.  These 
cases  are  divided  into  three  classes.2 

1.  Cases  relating  to  instruments  required  by  law  to 
be  in  writing,  such  as  records,  deeds  for  the  conveyance 
of  land,  and  other  contracts  required  to  be  in  writing 
by  the  statute  of  frauds.     In  these  cases  oral  evidence 
cannot  be  substituted  for  the  written  evidence  required 
by  law  so  long  as  the  writing  exists. 

2.  Cases  relating  to  contracts  which  the  parties  have 
put  in  writing.     The  rule  here  is  that  the  writing  must 
be  produced,  or  the  impossibility  of  producing  it  be 
shown,  before  oral  evidence  can  be  introduced  to  show 
what  its  contents  are. 

Oral  evidence  can  be  introduced  to  explain  written  con- 
tracts, but  not  to  contradict,  vary,  or  add  to  that  con- 
tained in  the  written  instrument.  This  rule  applies  only 
to  parties  and  privies,  however,  not  to  strangers.3  Thus, 
parties  to  a  conveyance  under  seal,  which  states  a  con- 
sideration, cannot  deny  that  there  is  a  consideration, 

1  I  Greenl.  Ev.  §  84.  9  Id.  §  85. 

3 1  Greenl.  Ev.  §§  275,  279;  see  i  Rice  Ev.  254  et  seq.,  and  cases 
cited. 


210  A  REVIEW  IN   LAW  AND  EQUITY. 

though  it  may  be  shown  that  the  actual  consideration 
differs  from  that  stated  in  the  conveyance.  Third 
parties,  however,  who  are  not  privies,  can  show  that 
there  was  no  consideration. 

There  is  a  striking  exception  to  this  rule  excluding 
parol  evidence,  in  the  case  of  a  conveyance,  absolute  in 
form,  which  is  yet  intended  by  the  parties  to  have  the 
force  of  a  mortgage.  In  equity,  the  party  making  the 
conveyance  can  show  that  the  conveyance  was  intended 
to  operate  as  a  mortgage,  and  upon  tendering  the 
amount  due,  can  compel  a  re-conveyance.1 

The  rule  does  not  prevent  parties  from  showing  that 
a  written  contract  has  been  waived  and  a  different  oral 
contract  subsequently  substituted  in  its  stead. " 

Ambiguities  in  written  contracts  are  of  two  kinds. 
(a).  Patent. 
\b\  Latent. 

(a).  Patent  ambiguities  are  such  as  appear  upon  the 
face  of  the  instrument,  as  in  a  grant  in  which  no  grantee 
is  named. 

(b).  Latent  ambiguities  are  such  as  arise  from  some 
collateral  matter,  and  do  not  appear  upon  the  face  of  the 
instrument :  as  if  A  grants  to  B  a  farm  lying  in  the 

county  of  C ,  and  it  appears  that  A  has  two  farms  in 

that  county.  Latent  ambiguities  may  be  explained  by 
parol  evidence  ;  patent  ambiguities  cannot  be  so  explained? 

A  receipt  is  not  a  contract,  nor  necessarily  evidence 
of  a  contract.  It  is  merely  evidence  of  payment,  and 
may  be  contradicted  and  disproved  by  parol  evidence. 
If  a  receipt  in  full  be  given  upon  part  payment  of  a 
claim  whose  amount  is  undisputed,  with  an  agreement 
that  the  amount  so  paid  shall  be  a  settlement  in  full, 
the  agreement  is  not  binding,  as  being  without  con- 
sideration. But  if  a  receipt  in  full  is  given  upon  part 

1  i  Rice  Ev.  268,  and  cases  cited.  2  i  Greenl.  Ev.  §  303. 

3  Id.  §§  297,  300,  301  ;   i  Rice  Ev.  275. 


EVIDENCE.  211 

payment  of  a  claim  whose  amount  is  disputed,  by  way 
of  compromise,  with  the  agreement  that  the  payment 
shall  be  accepted  as  payment  in  full,  such  agreement  is 
binding,  and  is  a  bar  to  an  action  for  a  balance  claimed 
as  due.1 

3.  Oral  evidence  cannot  be  substituted  for  any  writ- 
ing, the  existence  of  which  is  in  dispute,  and  which  is 
material  to  the  issue  between  the  parties.2 

HEARSAY. 

Hearsay  denotes  that  kind  of  evidence  which  does 
not  derive  its  value  solely  from  the  credit  to  be  given 
to  the  witness  himself,  but  rests  in  part  on  the  veracity 
and  competency  of  some  other  person.3  It  is  what  one 
person  heard  some  one  else  say. 

The  general  rule  is  that  hearsay  is  inadmissible,  on 
two  grounds. 

1.  That,  if  admitted,  it  would  practically  amount  to 
receiving  testimony  not  given  under  oath.'1' 

2.  That  there  is  no  opportunity  for  cross-examining 
the  party  actually  making  the  statement. 

In  five  cases  EVIDENCE  which  is  APPARENTLY  HEAR- 
SAY, IS  ADMITTED  as  being  really  original  evidence.* 

I .  When  the  question  at  issue  is  whether  a  communi- 
cation was  actually  made,  and  not  whether  it  was  true, 
evidence  of  the  statements  of  third  parties  is  admissible 
as  original  evidence.  Thus,  a  party  may  state  the  infor- 
mation on  which  he  acted,  in  a  question  involving  his 
good  faith.8  Also  the  replies  given  to  an  officer  at  the 
residence  of  an  absent  witness  or  of  a  bankrupt  may  be 

1  See  i  Rice  Ev.  231,  232 ;  i  Greenl.  Ev.  §  305  ;  2  Par.  Contr.  '555, 
*68?  note  (8th  Ed.). 

8  i  Greenl.  Ev.  §  88.  3  Id.  §  99- 

4  i  Rice  Ev.  370  ;  2  Best  Ev.  §  493. 

5  i  Greenl.  Ev.  §  100  et  seq. 

6  Taylor  v.  Willans,  2  B.  &    Ad.  845  ;    Colman  v.  Southwick,  9 
Johns.  45. 


212  A   REVIEW   IN   LAW   AND   EQUITY. 

given.1     On  this  principle  evidence  of  general  reputa- 
tion, etc.,  may  be  introduced.8 

2.  When  bodily  or   mental  feelings  are  to  be  proved, 
the  expressions  employed  at  the  time  in  question  may  be 
given?  such  as  the  expressions  of  pain  uttered  by  a 
person  injured  in  an  accident. 

3.  In  cases  involving  pedigree,  the  acknowledgment  of 
relationship  by  those  from  whom  descent  is  claimed  is 
admissible,  as  are  also  inscriptions  on  tombstones  and 
family  portraits.4 

4.  Circumstances    and   declarations    contemporaneous 
with  the  main  fact,  closely  connected  with  it,  and  illus- 
trating its  character,  may  be  introduced  as  a  part  of  the 
res  gestce  (things  done) :    such  as  expressions  of  pain 
immediately  after  an  accident.5 

5.  Certain    entries    made    by   third  parties.     Thus, 
entries  made  in  the  discharge  of  official  duties  are  ad- 
missible  if  they  are  such  as  it  was  the  duty  of  the 
person  making  them  to  make,  if  they  are  made  in  the 
regular  course  of  business  and  contemporaneously  with 
the  original  transaction,  as  in  case  of  entries  made  by 
the  cashier  of  a  bank,  or  the  charges  made  by  a  mer- 
chant or  his  clerk  in  his  shop  book,  if  made  at  the  time 
of  the  transaction* 

In  four  cases  THE  RULE  AGAINST  THE  ADMISSION 
OF  HEARSAY  EVIDENCE  DOES  NOT  HOLD.7 

I.  In  matters  of  public  and  general  interest.  Thus, 
evidence  is  admitted  of  common  reputation  in  regard  to 
public  facts,  as  the  claim  of  a  highway.  This  exception 
prevails  in  only  two  instances. 

1  Crosby  v.  Percy,  i  Taunt.  364  ;  Sumner  v.  Williams,  5  Mass.  444. 

2  Walker  v.  Moore,  122  Mass.  501. 

3  Insurance  Co.  v.  Mosley,  8  Wall.  397. 

4  Jackson  v.  Browner,  18  Johns.  37. 

5  I  Rice  Ev.  377,  and  cases  cited. 

6  I  Greenl.  Ev.  §§  116,  117,  and  cases  cited. 
1  Id.  §  127  ft  sey. 


EVIDENCE. 


2I3 


(a).  In  the  case  of  ancient  rights, 
(b).  In  regard  to  the  declaration  of  persons  supposed 
to  be  dead. 

2.  In  matters  relating  to  ancient  possession,  ancient 
documents  are  admitted. 

3.  In  the  case  of  declarations  and  entries  made  by 
persons  deceased,  and  against  the  interest  of  the  person 
making  them.    The  fact  that  the  declarations  are  against 
interest  is  regarded  as  a  sanction  equal  to  that  of  an 
oath. 

4.  In  the  case  of  dying  declarations.     The  nearness 
of  death  is  regarded  as  equivalent  in  force  to  an  oath. 
Such    declarations,    to   be   admissible,  must  be   made 
under  a  sense  of  impending  death. 

ADMISSIONS  AND   CONFESSIONS. 

These  subjects  are  usually  treated  under  the  head  of 
hearsay.  Under  certain  conditions,  they  are  admissi- 
ble, being  regarded  as  declarations  against  interest. 

An  admission  is  the  voluntary  acknowledgment  of 
certain  facts.  A  confession  is  the  voluntary  acknowl- 
edgment of  guilt.1 

Admissions  are  admissible  in  three  cases.1 

1.  When  they  are  made  by  a  party  to  the  record  in  a 
suit,  or  by  one  identified  in  interest  with  him. 

2.  When  made  by  parties,  not  parties  to  the  record, 
but  interested  in  the  subject-matter  of  the  suit,  as  of  per- 
sons interested  in  a  policy  of  insurance  effected  in  the 
name  of  another,  but  for  their  benefit.* 

7/3.  In  some  cases  when  made  by  third  parties  who 
*are  strangers  to  the  suit,  as  in  case  of  the  admission  of 
joint  liability  by  a  third  party,  evidence  of  which  has 
been  held  sufficient  to  support  a  plea  in  abatement.4 

1  See  i  Greenl.  Ev.  §§  169,  170,  213.  *  Id.  §§  171,  180,  181. 

3  Bell  v.  Ausley,  16  East.  141. 

4  Clay  v.  Langslow,  i  M.  &  M.  45. 


214  A  REVIEW   IN   LAW   AND   EQUITY. 

Confessions  are  of  two  kinds.1 

1.  Judicial,  or  those  made  before  a   magistrate  or 
court,  in  the  course  of  legal  proceedings. 

2.  Extra  judicial,    or    all    confessions   other    than 
judicial. 

The  chief  essential  to  a  valid  confession  of  either 
kind  is  that  it  be  voluntary.  Any  threat,  or  anything 
in  the  nature  of  a  threat,  invalidates  the  confession  and 
renders  it  incompetent.  There  must  be  no  constraint  of 
any  kind."  Herein  the  rule  differs  from  that  govern- 
ing admissions.  Admissions  made  under  any  legal  con- 
straint are  good.3 

EVIDENCE    EXCLUDED    ON    GROUNDS    OF    PUBLIC 
POLICY. 

Evidence  of  this  kind  comprises  five  classes. 

1.  Professional  communications.*'      As  a  rule  this  ap- 
plies only  to  communications  made  professionally  by  a 
client  to  his  attorney.     The  attorney  cannot  be  com- 
pelled, nor  is  he  allowed  to  disclose  such  communica- 
tions.    In  some  States,  however,  the  exemption  has 
been  made  by  statute  .to  extend  to  communications 
made  to  physicians  and  clergymen.5 

2.  Communications  made  \.Q  judges  and  arbitrators* 

3.  Secrets  of  State,  transactions   between   heads  of 
departments  and  their  subordinates,  and  proceedings  of 
grand  jurors.7 

4.  Indecent  matter,  or  that  which  is  injurious  to  the 
feelings  and  interests  of  third  persons.8 

5.  Communications  between  husband  and  wife.9 

1  i  Greenl.  Ev.  §  216. 

s  Id.  §  219  et  seq.:    3  Rice  Ev.  489  et  seq.  3  Id.  §  193. 

4  Id.  §  237  et  seq.;  Steph.  Dig.  of  Ev.  art.  115. 

5  For  review  of  statutes  see  i  Greenl.    Ev.  §  248  note  (isth  Ed.). 

6  Id.  §  249.  '  Id.  §§  250  et  seq.  8  Id.  §  253. 
»  Id.  §  254,  see  note  (rsth  Ed.). 


EVIDENCE.  215 

WITNESSES. 

The  attendance  of  witnesses  is  enforced  by  a  subpoena, 
a  writ  commanding  the  witness  to  appear  before  the 
court  at  a  certain  time,  to  state  what  he  knows  in  re- 
gard to  the  cause  therein  described.  In  case  it  is 
desired  that  the  witness  bring  books  or  documents  with 
him,  a  clause  to  that  effect  is  inserted  in  the  subpoena, 
which  is  then  called  a  subpcena  duces  tecum  (You  shall 
bring  with  you). 

The  fee,  together  with  a  certain  amount  for  travel, 
both  of  which  are  fixed  by  law,  must  be  tendered  to 
the  witness  before  he  can  be  compelled  to  obey  the 
commands  of  the  subpcena.  If  a  witness  is  in  legal 
custody,  his  presence  in  court  is  secured  by  a  writ  called 
habeas  corpus  ad  testificandum,  directing  the  person 
having  the  .custody  of  the  witness  to  have  him  in 
court  on  a  certain  day  for  the  purpose  of  giving  testi- 
mony.1 

If  a  witness  does  not  appear  in  court,  when  properly 
summoned,  and  has  no  good  excuse  for  his  non-appear- 
ance, he  is  guilty  of  contempt  of  court,  for  which  he 
may  be  arrested  and  punished  by  fine  or  imprisonment, 
or  both.2 

COMPETENCY   OF  WITNESSES. 

At  common  law  four  classes  of  persons  were  incom- 
petent to  act  as  witnesses.3 

1.  Parties  to  the  action. 

2.  Persons  deficient  in  understanding. 

3.  Persons  insensible  to  the  obligation  of  an  oath. 

4.  Persons    who    have  pecuniary    interests    directly 
involved  in  the  matter  at  issue. 

Testimony  of  parties  of  classes  i  and  4  is  now 
rendered  admissible  by  statute,  while  questions  con- 

1  i  Greenl.  Ev.  §§  309,  31°,  3".  s  Id.  §  319- 

3  Id.  §  326  etseq. 


2l6  A   REVIEW   IN   LAW   AND    EQUITY. 

ceining  class  3  vary  with  the  statutes  of  the  different 
States. 

When  a  person  was  sworn,  and  examined  as  to 
whether  he  was  a  party  interested  in  the  cause,  he  was 
said  to  be  examined  on  his  voir  dire.1 

EXAMINATION. 

The  examination  by  the  party  producing  the  witness 
is  called  the  direct  examination.  The  examination  by 
the  opposing  counsel  is  called  the  m^w-examination. 

There  are  seven  chief  rules  relating  to  the  examina- 
tion of  witnesses. 

1.  In  direct  examination,  leading  questions  are  not 
permitted.2 

Leading  questions  are  such  as  suggest  a  desired 
answer  to  a  witness,  as :  "  You  did  so  and  so,  didn't 
you  ?  "  Such  questions  are  proper  on  the  cross-exami- 
nation. There  are,  however,  four  cases  when  leading 
questions  are  admissible  on  the  direct  examination. 

(a).  When  the  witness  is  evidently  hostile? 

(b).  When  some  omission  in  the  testimony  is  oc- 
casioned by  lack  of  recollection?  which  may  be  assisted 
by  a  suggestion. 

(c).  When  the  transaction  involves  many  items  and  dates. 

(d).  When  the  mind  of  the  witness  cannot  be  directed 
to  the  subject  of  inquiry  without  a  specification  of  it.5 

2.  A  witness   is   permitted  to  assist  his   memory  by 
the  use  of  written  instruments,  memoranda,  or  entries 
in  books.     Writings  may  be  used  for  this  purpose  in 
three  cases.8 

1  Bouv.  Law  Diet.,  sub  voir  dire. 

8  i  Greenl.  Ev.  §  434  et  seq. ;     i  Stark.  Ev.  *i6g  et  seq.  ;  2  Best  Ev. 
§  641  et  seq. 

3  Williams  v.  Eldridge,  i  Hill  249. 

4  Cheeney  v.  Arnold,  18  Barb.  434. 
6  Lowe  v.  Lowe,  40  la.  220. 

6  i  Greenl.  Ev.  §  437  ;  see  2  Rice  Ev.  744. 


EVIDENCE.  217 

(a).  When  the  writing  is  used  solely  to  assist  the 
memory  of  the  witness.1 

(b).  When  the  witness  remembers  that  he  has  seen 
the  writing  before,  and  remembers  that,  at  the  time  he 
saw  it,  he  knew  that  the  contents  were  correct? 

(c).  When  the  witness  does  not  remember  having 
seen  the  writing  in  question  before,  and  remembers 
nothing  contained  in  it,  but  from  his  knowledge  that 
the  writing  is  genuine,  he  is  enabled  to  swear  to  the 
facts  set  forth  in  the  writing.  Thus  a  person,  being 
shown  a  note  with  his  indorsement  upon  it,  can  swear 
that  the  note  passed  through  his  hands.3 

3.  While,  as  a  rule,  witnesses  are  obliged  to  testify 
to  facts  within  their  own  knowledge,  yet  in  some  cases 
expressions  of  opinion  or  belief  may  be  given,  as  in  the 
case  of  experts,  who,  on  the  facts  as  testified  to  by 
other  witnesses^  may  express  an  opinion  in  regard  to 
questions  of  sanity,  etc.4 

4.  A  party  is  not  allowed  to  impeach  the  credibility 
of  his  own  witness.     He  may,  however,  introduce  other 
witnesses  to  contradict  statements  made  by  a  former 
witness.5 

5.  When   the  right   of   cross-examination   arises,  it 
continues  throughout  the  cause,  so  that  a  party  subse- 
quently calling  a  witness  whom  he  has  previously  cross- 
examined,  to  prove  a  fact  in  his  own  case,  may  cross- 
examine  him  in  regard  to  this  fact.* 

6.  Witnesses  are  not  compelled  to  answer  questions  in 
four  cases.7 

(a).  When  it  appears  that  the  answer  will  tend  to  ex- 
pose the  witness  to  a  criminal  prosecution,  or  to  any 
kind  of  punishment. 

1  Reed  v.  Boardman,  20  Pick.  441. 

2  Costello  v.  Crowell,  133  Mass.  352. 

3  See  i  Stark.  Ev.  *i$4,  Tail.  Ev.  432.  *  i  Greenl.  Ev.  §  44°. 
5  Id.  §§  442,  443;  i  Rice  Ev.  609  ft  seq. 

«  i  Greenl.  Ev.  §  447.  '  Id.  §  45 1. 


2l8  A   REVIEW   IN  LAW  AND   EQUITY. 

(&).  When  the  answer  would  subject  the  witness  to 
pecuniary  loss.1 

(c).  When  the  answer  has  a  direct  tendency  to  dis- 
grace the  character  of  the  witness.  This  exception  ap- 
plies only  to  collateral  and  irrelevant  questions  asked 
on  cross-examination. 

(d).  No  person  can  be  compelled  to  testify  against 
himself  in  a  criminal  cause. 

7.  The  credibility  of  a  witness  may  be  impeached 
in  four  ways.2 

(a).  By  disproving  the  facts  to  which  he  has  testified, 
by  the  adverse  testimony  of  other  witnesses. 

(b).  By  showing  that  the  witness  has,  at  other  times, 
made  statements  contrary  to  those  given  by  him  at  the 
time  of  trial. 

(c).  By  a  successful  cross-examination. 

(d).  By  impeaching  his  general  character  for  truth 
and  veracity. 

1  This  has  never  been  regarded  as  true  even  at  common  law  in  the 
United  States.     See  i  Greenl.  Ev.  §§  452,  453. 
*  i  Greenl.  Ev.  §  461  et  seq. 


CHAPTER  XXXIV. 

CRIMINAL  LAW. 

A  crime  is  an  act  committed  or  omitted,  in  violation 
of  a  public  law,  forbidding  or  commanding  it.1  For  dis- 
tinction between  Crimes  and  Torts,  see  page  149. 

In  all  crimes  there  must  be  an  intent  to  do  the  act 
committed.  Unless  the  act  springs  from  the  will,  it 
cannot  be  a  crime.3  An  intent  to  violate  the  law  is  not 
essential  to  the  commission  of  a  crime, — i.  e.,  ignorance 
of  the  law  is  no  excuse.  Neither  is  ignorance  of  the 
fact  that  an  act  is  unlawful.  Thus  when  the  selling  of 
adulterated  milk  is  made  a  crime,  ignorance  that  the 
milk  sold  is  below  the  standard  fixed  by  law  is  no  de- 
fence. But  there  must  be  the  intent  to  make  the  sale? 

I.  Parties  incapable  of  committing  crimes  are,  in 
general,  all  persons  whose  wills  are  either  actually,  or 
by  presumption  of  law,  incapable  of  forming  the  intent 
to  commit  a  criminal  act.4  They  may  be  divided  into 
six  classes.5 

I.  Infants  under  the  age  of  seven  are  indisputably 
presumed  incapable  of  committing  a  crime.  Infants  at 
the  age  of  fourteen  are  presumed  capable  of  commit- 
ting crime.  In  case  of  infants  between  the  ages  of  seven 
and  fourteen,  the  question  of  their  criminal  capacity  is 
one  of  fact,  the  burden  of  proving  the  existence  of 
criminal  capacity  being  upon  the  prosecution* 

1  4  Bl.  Comm.  5. 

5  i  Bish.  C.  L.  §  287;  May  C.  L.  §  5.  *  May  C.  L.  §  53. 
4  See  i  Bish.  C.  L.  §  375  ;    Commonwealth  v.    Rogers,  7  Met.  500. 

6  May  C.  L  §  36  et  seq.;   4  Bl.  Comm.  22  et  seq. 
6  4  Bl.  Comm.  23;  i  Bish.  C.  L.  §  368. 

(219) 


22O  A   REVIEW   IN   LAW   AND   EQUITY. 

2.  Persons  of  non-sane  mind.     The  sanity  of  a  per- 
son accused  of  crime  must  be  proved  beyond  a  reason- 
able doubt.1 

3.  Though  -voluntary  drunkenness  is  no  excuse,  justi- 
fication, or  palliation  of  a  crime,  it  is  yet  often  to  be 
considered  in  determining  the  degree  of  a  crime.     In 
crimes  where  the  guilty  knowledge  and  intent  form  the 
principal  ingredients,  as  in  that  of  passing  counterfeit 
money,  drunkenness  may  be  a  defence.2 

4.  Persons  committing  an  unlawful  act  by  accident  or 
chance.      See  excusable  homicide,  page  225.     An  un- 
lawful act  arising  by  accident  or  chance  from  a  lawful 
act  is  not  a  crime,  but  all  unlawful  acts  arising  by  acci- 
dent or  chance  from    unlawful  acts  are   regarded    as 
committed  with  intent,  and  are  crimes.3 

5.  Persons  committing  unlawful  acts  under  a  mistake 
of  fact :  as  if  A,  intending  to  kill  a  thief,  shoots  one  of 
his  own  family.4 

6.  Persons  committing  an  unlawful  act  under  com- 
pulsion, or  inevitable  necessity,  such  as  a  treasonable  act 
done  by  a  person  in  the  hands  of  the  enemy  and  under 
a  well-grounded  fear  of  death,  or  as  if  one  of  two  per- 
sons clinging  to  a  plank  in  mid-ocean   insufficient  to 
support  them  both,  should  thrust  the  other  off.5 

II.  Criminals  are  divided  into  two  general  classes.6 
I.  Principals,  who  may  be  of  two  degrees:  (a)  Prin- 
cipals in  the  first  degree,  or  the  absolute  perpetrators  of 
the  crime,    (b)  Principals  in  the  second  degree,  or  those 
who  aid  and  abet  in  the  crime. 

1  There  is  much  confusion  and  conflict  in  this  matter,  however.    See 
for  classification  and  review  of  cases,  i  Whart.  C.  L.  §  61. 

2  Pigman  v.  State,  15  Ohio  555.    For  general  subject  and  cases,  see 
I  Whart.  C.  L.  §  51  et  seq. 

3  4  Bl.  Comm.  26.  4  Level's  Case,  i  Hale  P.  C.  42. 

5  See    United    States  v.   Holmes,   I  Wall.  Jr.    i    (Circuit  Court)  ; 
Bacon's  Maxims,  No.  5. 

6  See  4  Bl.  Comm.  33  et  seq.;  May  C.  L.  §  69  et  seq. 


CRIMINAL   LAW.  221 

2.  Accessories,  or  persons  not  the  chief  actors  in  the 
offence,  nor  present  at  its  commission,  but  who  are  in 
some  way  concerned  therein.  Accessories  may  be  of 
two  kinds,  (a)  Accessories  before  the  fact,  or  persons, 
who,  being  absent  at  the  time  when  the  crime  was 
committed,  yet  procure,  counsel,  or  command  another 
to  commit  it.  (b)  Accessories  after  the  fact,  or  per- 
sons who,  aware  that  the  crime  has  been  committed, 
receive,  comfort,  or  assist  the  criminal. 

III.  Crimes  may  be  divided  into  three  general 
classes.1 

1 .  Treason. 

2.  Felonies. 

3.  Misdemeanors. 

1.  Treason  is  in  general  disloyalty  to  one's  govern- 
ment.    It  is  defined  in  the  Constitution  of  the  United 
States,8  and  of  the  different  States.     It  is  regarded  as 
the  gravest  of  all  crimes.     At  common  law  treason  was 

o 

of  two  kinds.3 

(a).  Petit  treason. 

(b).  High  treason. 

(a).  Petit  treason  occurred  when  an  inferior  killed 
his  superior,  as  a  servant  his  master.  This  is  now 
treated  as  ordinary  homicide. 

(b).  High  treason  is  that  treason  which  was  first  de- 
fined. Owing  to  the  gravity  of  the  crime,  all  persons 
engaged  in  treason  are  treated  as  principals.  There  are 
no  accessories  in  treason.4 

2.  Felonies,  at  common  law,  were  crimes  which  in- 
volved the  forfeiture  of  the  criminal's  property.5  Felony 
is  now  largely  regulated  by  statute.     The  usual  test  is 
whether  the  crime  is  punishable  with  death,  or  imprison- 

1  May  C.  L.  §  9  ;  i  Bish.  C.  L.  §  602. 

2  Art.  II.  sec.  3.  3  4  Bl.  Comm.  75. 
4  May  C.  L.  §  72  ;  see  i  Bish.  C.  L.  §  605. 

*  4  Bl.  Comm.  94,  95  ;  i  Bish.  C.  L.  §  615,  2. 


222  A   REVIEW   IN   LAW   AND   EQUITY. 

merit  in  the  State  prison?     Felonies  are  the  only  crimes 
in  which  there  can  be  accessories? 

3.  Misdemeanors  include  all  offences  not  embraced 
in  treason  and  felonies.  Owing  to  their  comparatively 
insignificant  character,  all  persons  connected  with  their 
commission  are  treated  as  principals. 

IV.  The  rules  of  evidence  are,  in  general,  the  same 
in  criminal  as  in  civil  causes.     Two  rules,  however,  re- 
quire special  mention. 

1.  Every   material  allegation   made   by  the  prosecu- 
tion must  be  proved  beyond  a  reasonable  doubt,  or  the 
defendant  is  entitled  to  an  acquittal.3 

2.  No  person  shall  be  put  on  trial  twice  for  the  same 
offence.     This  means  that  when  a  person  has  once  been 
put  on  trial,  on  a  sufficient  indictment,  and  has  been 
convicted  or  acquitted,  this  conviction  or  acquittal  is  a 
bar  to  any  subsequent  prosecution  for  the  same  charge, 
in  the  same  jurisdiction? 

V.  Specific  crimes.     Among  these  twenty-nine  may 
be  mentioned. 

1.  Affray:  The  fighting  of  two  or  more  persons  in 
some  public  place.5 

2.  Arson :    The  malicious   burning  of  the  Jwuse  of 
another.     The  term  house  includes  not  only  the  mansion 
house,  but   all  out-houses  which  are  a  parcel  thereof, 
though  not  contiguous  to  it,  nor  under  the  same  roof, 
as  a  barn.6 

3.  Assault  and  battery.     Seepage  151. 

4.  Barratry :  An  unlawful  or  fraudulent  act,  or  very 
gross  and   culpable  negligence,  of  the  master  or  mar- 
iners of  a  vessel,  in  violation  of  their  duty  as  such,  and 

1  i  Bish.  C.  L.  §  618. 

'2  May  C.  L.  §  72  ;    Commonwealth  v.  Ray,  3  Gray  441  ;     Ward  v. 
People,  6  Hill  144. 

3  May  C.  L.  §  124  ;  see  3  Rice  Ev.  431  et  seq. 

4  May  C.  L.  §  117  et  seq.  5  2  Bish.  C.  L.  §  I. 
•  Id.  §  8  et  seq. 


CRIMINAL   LAW.  223 

directly  prejudicial   to   the   owner,   and   without    his 
consent.1 

5.  Barratry :  The  frequent  exciting  and  stirring  up 
of  quarrels  and  suits,  either  at  law,  or  otherwise.'    Three 
instances  of  offending  must  be  shown  in  order  to  con- 
vict.    Champerty  and  maintenance  are  offences  similar 
to  barretry.     Champerty  is  a  bargain  with  the  plaintiff 
or  defendant  in  a  suit,  for  a  portion  of  the  land  or  other 
matter  sued  for,  in  case  of  the  successful  termination  of 
the  suit,  which  the  champertor  undertakes  to  carry  on 
at  his  own  expense. 

Maintenance  is  the  intermeddling  of  a  stranger  in  a 
suit  for  the  purpose  of  stirring  up  strife  and  continu- 
ing the  litigation. 

6.  Bigamy :    The   wilful   contracting  of   a    second 
marriage  when  the  contracting  party  knows  that  the 
first  marriage  is  still  subsisting.3 

7.  Blasphemy:   A  false  reflection  uttered  with  the 
malicious  design  of  reviling  God.     This  offence  is  gen- 
erally defined  and  regulated  by  statute.4 

8.  Bribery:  The  receiving  or  offering  any  undue  re- 
ward by  or  to  any  person  whose  ordinary  business  re- 
lates to  the  administration  of  justice,  in  order  to  influ- 
ence his  behavior  in  office.5 

9.  Burglary:  The  breaking  and  entering  the  house 
of  another,  in  the  night-time,8  with  intent  to  commit  a 
felony. 

Place  :  It  must  in  general  be  a  house  actually  occu- 
pied as  a  dwelling,  though  a  house  left  by  the  owner, 
with  the  intention  of  returning,  is  regarded  as  a  dwell- 
ing house.  At  common  law,  a  burglary  could  be  com- 
mitted in  a  church. 

1  Bouv.  Law  Diet.,  and  cases  cited  ;  May  C.  L.  §  339. 

s  Sometimes  spelled  Barratry  ;  4  Bl.  Comm.  134  :  Clark  C.  L.  322. 

3  Bouv.  Law  Diet. ;  sometimes  discussed  under  Polygamy. 

4  id.  »  Id.  6  2  Bish.  C.  L.  §  90  et  seq. ;  Bouv.  Law  Diet. 


224  A   REVIEW   IN   LAW   AND   EQUITY. 

Time :  The  crime  must  be  committed  in  the  night 
time.  It  is  deemed  to  be  night  when,  by  the  light  of 
the  sun,  a  person  cannot  clearly  discern  the  face  of 
another. 

The  breaking  may  be  of  two  kinds,  (a)  actual,  when 
the  burglar  breaks  or  removes  any  portion  of  the  house, 
or  of  its  fastenings ;  (&)  constructive,  as  when  the  bur- 
glar gains  entrance  by  fraud.  The  least  entry,  with 
the  whole  or  any  part  of  the  body,  or  with  any  instru- 
ment or  weapon  introduced  for  the  purpose  of  commit- 
ting a  felony,  is  sufficient  to  constitute  the  offence. 

10.  Cheating :    The  fraudulent  pecuniary  injury  of 
another  by  some  token,  device,  or  practice,  of  such  a 
character  as  is  calculated  to  deceive  the  public.1 

11.  Conspiracy:  The  combination  of  two  or  more 
persons,  by  some  concerted  action,  to  accomplish  some 
criminal  or  unlawful  purpose,  or  to  accomplish  some 
lawful  purpose  by  criminal  or  unlawful  means.2 

12.  Counterfeiting:  The  making  of  a  false  piece  of 
money  in  the  likeness  of  the  genuine,  with  intent  to 
defraud.3 

13.  Embezzlement:    The  fraudulent   appropriation 
to  one's  own  use,  of  the  money  or  goods  entrusted  to 
one's  care  by  another.4     It  differs  from  larceny  in  that 
the  embezzler  is  originally  lawfully  in  possession  of  the 
property  embezzled. 

14.  Embracery:  An  attempt,  by  corrupt  means,  to 
induce  a  juror  to  give  a  partial  verdict.5 

15.  Engrossing:    The    buying    up   of    such    large 
quantities  of  an  article  as  to  obtain  a  monopoly,  for  the 
purpose  of  selling  it  at  an  unreasonable  price.      Fore- 
stalling and  regrating  were  similar  offences.      Forestal- 

1  May  C.  L.  §  318 ;  i  Hawk.  P.  C.  318,  g  i  (8th  Ed.). 

3  Bouv.  Law  Diet.,  and  cases  cited.  3  May  C.  L.  §  336^ 

4  Fagnan  v.  Knox,  40  N.  Y.  Super.  Ct.  41,  49  ;  May  C.  L.  §  298. 
6  2  Bish.  C.  L.  §  384. 


CRIMINAL   LAW.  22$ 

ling  was  buying  provisions  on  the  way  to  market,  with 
the  intent  to  sell  them  again  at  a  higher  price.  Regrat- 
ing  was  the  buying  of  provisions  in  a  market,  and  the 
selling  of  them  again  in  the  same  market,  or  within 
four  miles  of  the  place  where  they  were  bought.1 

16.  Extortion:  The  unlawful  taking  by  any  officer, 
under  color  of  his  office,  of  any  money  or  thing  of 
value,  that  is  not  due  him,  or  more  than  is  due,  or  be- 
fore it  is  due.2 

17.  False  imprisonment.     See  page  151. 

1 8.  Obtaining  money  under  false  pretences. 

19.  Forgery  :  The  fraudulent  making  or  alteration 
of  a  writing  to  the  prejudice  of  another's  right.3 

20.  Homicide :    The    killing  of    a    human    being.4 
Homicide  is  of  three  kinds. 

A.  Justifiable. 

B.  Excusable. 

C.  Felonious. 

A.  Justifiable  homicide,  in  which  there  is  no  guilt, 
as  when  a  criminal  is  executed  in  accordance  with  a 
sentence  of  death,  or  when  an  officer,  in  performing 
the  duties  of  his  office,  kills  a  person  who  assaults  and 
resists  him. 

B.  Excusable  homicide,  in  which  there  is  but  slight 
guilt,  and  no  penalty  is  inflicted  by  law.     Excusable 
homicide  is  of  two  kinds. 

(a).  Homicide  by  misadventure,  where  a  person, 
doing  a  lawful  act,  without  any  intention  of  doing  an 
injury,  kills  another  by  accident,  as  if  the  head  of  an 
axe,  with  which  a  person  is  at  work,  should  fly  off  and 
kill  a  bystander. 

(b).  Homicide  in  self-defence.  A  person  may  take 
the  life  of  another  in  defence  of  himself  and  of  certain 
other  persons,  in  four  cases. 

1  4  Bl.  Comm.  158.  s  2  Bish.  C.  L.  §  390,  2. 

3  4  Bl.  Comm.  247.  4  Id.  177  et  seq.\  3  Greenl.  Ev.  §  114  et  seq. 


226  A   REVIEW   IN   LAW   AND   EQUITY. 

[  I  ] .  When  one  person  assaults  another  and  uses  violence 
sufficient  to  create  in  the  mind  of  the  second  a  reasonable 
fear  for  his  life.1 

[2] .  When  two  persons  have  been  engaged  in  a  mutual 
fight  and  one  gives  up  the  struggle  :  if  the  latter  re- 
treats as  far  as  he  can  and  the  other  pursues  him,  the 
pursued  is  justified  in  killing  his  pursuer  in  self -defence.'' 

[3].  A  man  may  defend  his  dwelling  to  any  extremity 
against  persons  not  lawfully  empowered  to  enter  it.3 

[4].  A  person  may  take  the  life  of  another  in  defence 
of  any  member  of  his  family  on  the  principle  of  con- 
structive self-defence* 

C.  Felonious  homicide  is  the  killing  of  any  human 
creature,  without  justification  or  excuse.  It  is  divided 
into  two  branches. 

(a).  Manslaughter, 
(b).  Murder. 

(a).  Manslaughter  is  the  unlawful  killing  of  another, 
without  malice,  express  or  implied?     Manslaughter  is 
divided  into  two  branches, 
[i].   Voluntary. 
[2].  Involuntary. 

[i].  Voluntary  manslaughter  occurs  when,  upon  a 
sudden  quarrel,  two  persons  fight,  and  one  of  them  kills 
the  other. 

[#].  Involuntary  manslaughter  is  that  resulting  in 
consequence  of  an  unlawful  act,  as  when  a  workman 
carelessly  throws  a  stone  into  a  street,  by  which  a 
person  is  killed.  If  the  street  were  one  but  seldom 
used,  the  crime  would  be  manslaughter  ;  if  a  frequented 
thoroughfare,  it  would  be  murder. 

\b\.  Murder  is  the  unlawful  killing  of  any  human  be- 
ing, with  malice  aforethought.6 

1  4  Bl.  Comm.  183  ;  i  Whart.  C.  L.  §  306.  *  Id.  184. 

3  i  Whart.  C.  L.  §  502  et  seq.;  Pond  v.  People,  8  Mich.  150. 

4  4  Bl.  Comm.  186.  6  Clark  C.  L.  165  et  seq. 
•Clark  C.  L. 


CRIMINAL   LAW.  22/ 

Malice  may  be  either  express  or  implied  ;  express,  as 
where  previous  threats  or  other  circumstances  show 
that  the  criminal  purpose  was  in  the  criminal's  mind ; 
implied,  as  where  the  criminal  purpose,  though  not 
directly  proved,  is  indirectly  inferred  from  other  facts 
and  circumstances  which  are  proved. 

21.  Kidnapping:    The  forcible  abduction  or  steal- 
ing away  of  a  human  being.1 

22.  Larceny :  The  wrongful  and  fraudulent  taking 
and  carrying  away  of  the  personal  property  of  another, 
with  the  intent  to  convert  it  to  the  taker's  use.2     This 
offence  can  be  committed  to  personal  property  only,1 
so  that,  at  common  law,  if  a  person  should  cut  a  melon 
from  the  vine  of  another,  and  carry  it  away,  without 
replacing  it  on  the  owner's  soil,  he  would  be  guilty  of 
trespass  only,  since  the  melon,  when  connected  with  the 
vine,  was  real  property,  and  could  not  be  made  the 
subject  of  larceny.     But  if  the  melon  was  replaced  on 
the  ground,  after  being  severed  from  the  vine,  and  was 
subsequently  carried    away,  the  crime  of  larceny  was 
completed,  as  the  melon  was  then  personal  property. 

Larceny  was  divided  into 4  (a) petit,  where  the  property 
stolen  was  twelve  pence  or  less  in  value;  (b]  Grand, 
where  the  goods  stolen  exceeded  twelve  pence  in  value. 
Larceny  may  be  also  divided  into  (a)  simple,  including 
petit  and  grand  larceny ; 5  (b)  compound,  or  larceny 
accompanied  with  certain  aggravating  circumstances,  as 
larceny  from  the  person,  or  from  a  dwelling-house. 

At  common  law  choses  in  action  could  not  be  made 
the  subject  of  larceny.8 

23.  Libel.     See  page  156. 

24.  Mayhem.     See  page  8. 

1  4  Bl.  Comm.  219.  •  2  East.  PI.  Cr.  553- 

3  4  Bl.  Comm.  2321  et  seq.  4  Id.  229.  5  Id.  239. 

6  May  C.  L.  §  272  ;  Payne  v.  People,  6  Johns.  103  ;  Regina  v. 
Powell,  5  Cox  C.  C.  396. 


228  A   REVIEW   IN   LAW   AND    EQUITY. 

25.  Perjury:    The  wilful   giving,  under   oath,  in   a 
judicial  proceeding  or  court  of  justice,  of  false  testi- 
mony, material  to  the  issue  or  point  of  inquiry.1  There 
are  six  essentials  to  this  crime.2 

(a).     The  intention  must  be  wilful. 

(b).     The  oath  must  be  false. 

(c).     The  party  must  be  lawfully  sworn. 

(d\    The  proceedings  must  be  judicial. 

(e).     The  assertions  must  be  absolute. 

(/).   The  oath  must  be  on  a  material  point. 

26.  Piracy :   Acts  of  robbery  and   depredation   on 
the  high  seas  which,  if  committed  on  land,  would  have 
amounted  to  felony.3 

27.  Rescue :    The   forcibly   and   knowingly   freeing 
another   from    arrest   or   imprisonment.4      Escape  and 
Prison  Breach  are  similar  offences.5 

Escape  is  the  voluntarily  and  negligently  allowing 
any  person,  lawfully  in  confinement  to  leave  the  place 
of  imprisonment. 

Prison  Breach  is  the  act  by  which  a  prisoner,  by 
force  and  violence,  escapes  from  a  place  where  he  is 
lawfully  in  custody. 

28.  Riot:   A  tumultuous  disturbance  of  the  peace 
by  three  or  more  persons,  assembling  with  intent  to  as- 
sist each  other  against  any  who  shall  oppose  them  in 
the  execution  of  some  private  enterprise,  and  after- 
wards actually  executing  the  same  in  a  violent  and 
turbulent  manner,  whether  the  act  intended  be  of  itself 
lawful  or  not.8     Rout  and  Unlawful  Assembly  are  similar 
offences.     Rout  differs  from  riot  only  in  that  it  may  be 
a  complete  offence  without  the  execution  of  the  intended 
enterprise?     It  is  an  attempt  to  commit  a  riot. 

1  2  Bish.  C.  L.  §  1015.  *  Bouv.  Law  Diet.,  and  cases  cited. 

3  I  Russ.  Crimes  *I44.  4  4  Bl.  Comm.  131. 

5  2  Bish.  C.  L.  §  1064  et  seq.  6  Hawk.  PL  Cr.  c.  65,  §  I. 

7  Id.  §  14  ;  i  Russ.  Cr.  *378. 


CRIMINAL   LAW.  229 

Unlawful  Assembly  is  an  assembly  of  persons  upon 
a  purpose  which,  if  executed,  would  make  them  rioters, 
but  which  they  do  not  execute  or  make  any  attempt  to 
execute.1 

29.  Robbery :  The  felonious  and  forcible  taking 
from  the  person  of  another,  of  goods  or  money,  by 
violence  or  by  putting  the  owner  in  fear  of  injury.3 

1  i  Russ.  Cr.  *378.  *  4  Bl.  Comm.  243. 


CHAPTER  XXXV. 

CORPORATIONS. 

A  corporation  is  a  body,  consisting  of  one  or  more 
persons,  established  by  law,  usually  for  some  specific 
purpose,  and  continued  by  a  succession  of  members.1 

Corporations  may  be  divided  into 3 

1.  Sole. 

2.  Aggregate. 

1.  Sole  corporations  are  those  which,  by  law,  consist 
of  but  one  member  at  any  time,  as  a  bishop,  and  other 
ecclesiastical  offices.     They  occur  but  seldom  in  the 
United  States. 

2.  Aggregate  corporations,  or  those  composed  of  two 
or  more  members  at  the  same  time. 

Corporations  may  also  be  divided  into 

1.  Ecclesiastical. 

2.  Lay. 

1.  Ecclesiastical  corporations    are    those   created   to 
secure  the  public  worship  of  God. 

2.  Lay  corporations  are  divided  into 
(a).  Civil. 

(b}.  Eleemosynary. 

(a).  Civil  corporations  are  divided  into 
(i).  Public. 
(2).  Private. 

(i).  Public  corporations  are  those  which  are  exclu- 
sively the  instruments  of  public  interest,  as  a  city,  or 
county. 

(2).  Private  corporations  are  those  created  wholly,  or 
in  part,  for  private  gain. 

1  Bouv.  Law  Diet.  5  Id.;  i  Bl.  Comm.  469. 

(230) 


CORPORATIONS.  231 

(ft).  Eleemosynary  corporations  are  those  created  for 
purposes  of  charity. 

I.  Corporations :    how    created.     In    the    United 
States   corporations   are,  as  a   rule,  created   by,   and 
derive   their   authority    solely    from,  the  Legislature. 
Corporations  may  also  exist. — 

1.  By  prescription,  which  presupposes   the  grant  of 
a  charter  by  the  Legislature.1 

2.  By  implication,  when  such  rights  are  granted,  or 
burdens  imposed  by  the  State  as  imply,  for  their  enjoy- 
ment or  fulfillment,  corporate  powers.2 

II.  Powers.     There  are  five  chief  powers  of  corpora- 
tions. 

1.  Perpetual  succession,  involving  the  admission  and, 
for  good  cause,  the  removal  of  members,  except  in 
case  of  stock  corporations,  where  members  cannot  be 
removed  against  their  will.     The  power  of  removing 
officers  is  sometimes  called  the  right  of  amotion. 

2.  The  power  to  sue  and  be  sued,  to  grant  and  re- 
ceive grants  of  land,  etc. 

3.  The  power  to  transmit  all  its  property  in  succes- 
sion. 

4.  The  power  to  have  a  seal,   and    to   alter  it   at 
pleasure. 

5.  The  power  to  make  by-laws  for  the  government 
of  the  corporation,  so  far  as  they  are  consistent  with 
the  charter  and  the  law  of  the  land. 

III.  How   dissolved.     A   corporation  may  be  dis- 
solved in  four  ways.4 

i.  By  act  of  the  Legislature.     A  public  corporation 
can   always  be  so   dissolved.5    A  private  corporation 

1  King  v.  Mayor,  etc.,  14  East.  360 ;    Robie  v.  Sedgwick,  35  Barb. 
326  ;  i  Morawetz  Pri.  Corp.  §  36. 

2  Denton  v.  Jackson,  2  Johns.   Ch.  325  (Kent.  Ch).;     Stebbins  v. 
Jennings,  10  Pick.   188. 

3  i  Bl.  Comm.  475.  4  *  Bl.  Comm.  485. 
6  i  Dill.  Mun.  Corp.  §  54- 


232  A   REVIEW   IN   LAW   AND   EQUITY. 

cannot  be  dissolved  in  this  way,  without  its  consent, 
unless  there  is  a  provision  to  that  effect  in  its  charter.1 

2.  By  the  death   of  all  its  members,  no   successors 
having  been  appointed  or  chosen. 

3.  By  the  surrender  of  its  charter. 

4.  By  the  forfeiture  of  its  charter. 

The  forfeiture  of  the  charter,  by  breach  of  conditions, 
must  be  declared  and  enforced  by  the  State,  by  direct 
proceedings  to  secure  that  effect ;  and  prior  to  such 
action,  no  advantage  of  the  breach  of  condition  can  be 
taken  by  a  private  individual,  in  any  collateral  proceed- 
ing.8 

At  common  law  it  was  the  doctrine  that  corporations 
could  act  only  through  or  under  the  seal,  but  this  is 
now  obsolete,  and  the  tendency  of  the  law  is  to  treat 
corporations  as  natural  persons,  so  far  as  their  contracts 
and  torts  are  concerned.8 

1  2  Morawetz  Pri.  Corp.  §  1013. 

2  Dyer  v.  Walker,  40  Pa.  St.  157  ;     Heard  v.  Talbot,   7  Gray  120; 
Young  v.  Harrison,  6  Ga.  130. 

3  2  Kent  Comm.  288  etseg.;    A.  &  A.  Corp.  §§  281-286;     I  Mora- 
wetz Pri.  Corp.  §  338. 


RULES   REGULATING 
ADMISSION  TO  THE   BAR   IN 
ALL  THE    STATES  AND    TERRITORIES  OF 
THE   UNITED  STATES. 


(233) 


RULES   REGULATING   ADMISSION 

TO   THE 

BAR  IN  ALL  THE  STATES  AND  TERRITORIES 

OF  THE 

UNITED   STATES. 

Alabama. 

Any  man,  of  the  age  of  twenty-one,  of  good  moral 
character,  and  possessing  the  requisite  qualifications  of 
learning  and  ability,  is  entitled  to  admission  to  the  bar 
of  Alabama. 

Application  for  admission  must  be  addressed  to  the 
Supreme  Court,  Court  of  Chancery,  or  the  Circuit 
Court.  Persons  admitted  to  practice  in  the  Supreme 
Court  can  practice  in  all  other  courts.  Persons  ad- 
mitted in  any  of  the  other  courts  can  practice  in  all 
courts,  except  the  Supreme  Court. 

Applicants  must  be  examined  in  open  court,  upon 
these  subjects : 

1.  Law  of  Real  Property. 

2.  Law  of  Personal  Property. 

3.  Law  of  Pleading  and  Evidence. 

4.  The  Criminal  Law. 

5.  Commercial  Law. 

6.  Chancery  and  Chancery  Pleading. 

7.  The  Statutes  of  the  State. 

The  Supreme  Court  may  appoint  an  examining  com- 
mittee to  conduct  examinations  either  in  public  or 

private. 

(235) 


236  RULES  REGULATING  ADMISSION 

Attorneys  from  other  States,  locating  in  Alabama, 
are  admitted  to  practice  on  such  terms  as  Alabama 
attorneys  are  admitted  to  practice  in  them. 

Arizona. 

Application  for  admission  may  be  made  at  the  term 
of  any  District  Court  or  of  the  Supreme  Court,  accom- 
panied by  a  certificate  from  the  Board  of  Supervisors 
of  the  county  in  which  the  applicant  resides,  that  he 
has  been  a  resident  of  the  Territory  at  least  six  months 
and  is  of  good  moral  character.  Thereupon  the  court 
appoints  an  examining  committee  of  three  attorneys, 
who,  on  a  day  fixed  by  the  court,  examine  the  candi- 
date in  open  court.  Upon  satisfactory  examination, 
the  applicant  is  admitted  to  practice  in  any  inferior 
court,  if  he  applies  to  the  District  Court  for  examina- 
tion. If  he  applies  to  the  Supreme  Court,  he  is 
admitted  to  practice  in  any  court  in  Arizona. 

Attorneys  from  other  States  and  Territories,  locating 
in  Arizona,  are  admitted  to  practice  upon  producing 
the  license  of  the  court  in  which  they  were  admitted  to 
practice,  and  satisfactory  evidence  of  good  moral 
character.  No  prior  residence  in  Arizona  is  necessary 
to  entitle  the  attorney  to  admission. 

Arkansas. 

Any  male  citizen  of  the  United  States,  of  the  age  of 
twenty-one,  of  good  moral  character,  may  be  admitted 
to  practice  upon  passing  a  satisfactory  examination  be- 
fore a  Circuit  Court.  Satisfactory  proof  of  the  forego- 
ing facts  must  be  produced  before  the  examination. 
Attorneys  from  other  States,  locating  in  Arkansas,  must 
be  examined  prior  to  their  admission  to  practice. 
Licenses  to  practice  before  the  Circuit  Courts  do  not 
entitle  their  holders  to  enrollment  in  the  Supreme 
Court  without  examination. 


TO  THE  BAR  IN  ALL  THE  STATES.  237 

California. 

Any  citizen,  or  any  person  who  has  bona  fide  declared 
his  or  her  intention  to  become  a  citizen,  of  the  age  -of 
twenty-one,  of  good  moral  character,  and  possessing 
the  requisite  learning  and  ability,  is  entitled  to  admis- 
sion as  an  attorney  and  counsellor. 

Every  applicant  must  produce  a  satisfactory  certifi- 
cate of  good  moral  character,  and  undergo  a  strict 
examination  in  open  court  by  the  Justices  of  the 
Supreme  Court,  or  by  the  Justices  sitting  and  holding 
one  of  the  departments  thereof,  provided  that  the 
several  Superior  Courts  may  admit  applicants  to  prac- 
tice in  their  respective  courts,  upon  examination  and 
the  production  of  satisfactory  testimonials  as  aforesaid. 

Any  citizen  of  the  United  States,  or  person  resident 
in  this  State,  who  has  bona  fide  declared  his  intention 
of  becoming  a  citizen,  according  to  the  manner  required 
by  law,  who  has  been  admitted  to  practice  in  the  high- 
est court  of  a  sister  State,  or  of  a  foreign  country, 
where  the  Common  Law  forms  the  basis  of  its  juris- 
prudence, may  be  admitted  to  practice  in  the  courts  of 
California,  upon  the  production  of  his  or  her  license, 
and  satisfactory  evidence  of  good  moral  character,  but 
the  court  may  examine  the  applicant  as  to  his  qualifi- 
cations. 

Colorado. 

No  person  shall  be  entitled  to  receive  a  license  to 
practice  law  until  he  shall  obtain  a  certificate  from  the 
court  of  some  county  of  his  good  moral  character,  also 
from  one  or  more  reputable  counsellors-at-law,  that  he 
has  been  engaged  in  the  study  of  law  for  two  successive 
years  prior  to  his  application  for  a  license. 

A  standing  committee  of  three  attorneys  is  appointed 
by  the  Supreme  Court  for  each  judicial  district,  whose 
duty  it  is  to  examine  applicants. 


238  RULES   REGULATING  ADMISSION 

Any  person  producing  a  license  from  a  court  of 
record,  or  a  duly  authenticated  copy  of  the  record  of 
any  court  of  record  in  the  United  States,  showing  that 
he  has  been  admitted  to  practice  in  that  court,  shall  be 
admitted  to  practice  in  Colorado. 

Women  are  not  admitted  to  the  Colorado  Bar. 

Connecticut. 

The  Judges  of  the  Superior  Court  shall  appoint  an 
examining  committee  of  fifteen,  of  which  one  or  more 
shall  be  judges  of  said  court,  and  the  rest  attorneys  re- 
siding in  this  State.  One  third  of  this  committee  goes 
out  of  office  on  July  I,  of  each  year. 

This  committee  shall  hold  two  sessions  annually  for 
the  examination  of  applicants,  one  in  Hartford,  begin- 
ning at  10  A.M.  on  the  Friday  after  Christmas,  or,  if  the 
said  day  be  New-Year's,  on  Thursday,  and  one  at  the 
court-house  in  New  Haven,  on  the  second  Thursday 
before  the  last  Monday  of  June.  The  members 
present  shall  be  a  quorum. 

To  entitle  an  applicant  to  examination,  he  must  sat- 
isfy the  committee — 

1st.  That  he  has  filed  with  the  clerk  of  the  Superior 
Court  where  the  examination  is  held,  a  certificate  from 
the  clerk  of  the  Superior  Court  of  the  county  in  which 
he  intends  to  apply  for  admission,  which  must  be  the 
county  in  which  he  has  last  studied ;  or  if  he  has  not 
studied  in  this  State,  the  county  in  which  he  resides — 
that  said  applicant  filed  notice  of  his  intention  to  apply 
for  examination  with  said  clerk,  at  least  fifteen  days 
prior  to  the  date  of  such  examination,  and  that  subse- 
quently, at  a  meeting  of  the  bar,  it  had  been  voted  that 
such  intended  application  was  approved. 

2d.  That  he  has  paid  to  the  clerk  of  the  Superior 
Court  for  the  county  in  which  the  examination  is  held, 
the  sum  of  ten  dollars. 


TO   THE   BAR   IN   ALL   THE   STATES.  239 

3d.  That  he  is  a  citizen  of  the  United  States,  and 
twenty-one  years  of  age. 

4th.  That  he  is  a  person  of  good  moral  character. 

5th.  That  before  beginning  the  study  of  law  he 
graduated  from  a  college,  high  school,  or  preparatory 
school,  or  was  admitted  to  some  college,  or  professional 
school,  or  passed  an  examination  upon  his  literary 
qualifications  before  said  examining  committee. 

6th.  That  after  reaching  the  age  of  eighteen  he  has 
studied  law  for  two  years,  if  a  college  or  law  school 
graduate,  otherwise  for  three  years,  in  a  law  school,  or 
under  competent  professional  instruction  in  the  office 
of  a  practicing  attorney,  or  both,  of  which  period  one 
year,  at  least,  must  be  spent  in  this  State. 

Applicants  must  pass  a  satisfactory  examination  on 
the  following  subjects :  Pleading,  Practice  and  Evidence, 
Constitutional  Law,  Real  and  Personal  Property,  Con- 
tracts, Torts,  Equity,  Criminal  Law,  Wills  and  Admin- 
istration, Corporations,  Partnership,  Negotiable  Paper, 
Agency,  Bailments,  Domestic  Relations,  and  any  addi- 
tional subjects  in  the  discretion  of  the  committee. 

The  committee  shall  certify  to  the  clerk  of  the 
Superior  Court  in  the  county  in  which  the  applicant 
filed  notice  of  his  intention  the  name  of  any  applicant 
who  has  passed  the  examination,  and  said  applicant  is 
thereupon  admitted  to  practice  upon  motion,  upon  the 
payment  of  a  fee  of  five  dollars. 

Attorneys  in  the  highest  court  of  original  jurisdiction 
in  another  State  are  admitted  to  examination  before 
said  committee,  upon  satisfactory  proof  that  they  are 
such  attorneys,  twenty-one  years  of  age,  of  good  moral 
character,  and  have  filed  with  the  clerk  of  the  Superior 
Court  in  the  county  in  which  they  reside,  notice  of 
their  intention  to  apply  for  examination,  and  that  the 
Bar  of  said  county  has  approved  such  application. 

If  such  persons  have  practiced  three  years  in  the 


240  RULES   REGULATING  ADMISSION 

highest  courts  of  another  State,  they  may  be  admitted 
by  the  court  without  examination,  upon  vote  of  the 
Bar,  and  proof  of  citizenship  and  good  moral  character. 

Delaware. 

There  shall  be  appointed  at  the  spring  term  in  each 
county,  to  serve  for  one  year  or  until  their  successors 
are  appointed,  a  Board  of  Examiners,  of  not  less  three 
nor  more  than  five  members  of  the  Bar.  No  person 
shall  be  registered  as  a  student  of  law  except  upon  the 
certificate  of  said  Board  that  he  is  a  resident  of  the 
State,  of  good  character,  and  that  he  has  been  found, 
upon  examination,  to  be  well  qualified  to  commence 
the  study  of  the  law.  The  examination  embraces  the 
following  subjects : 

Latin — the  student  being  allowed  to  designate  that 
one  of  the  following  authors  which  he  chooses :  Caesar, 
Cicero,  Livy,  and  Horace ;  History  generally,  and 
American  and  English  history  particularly ;  Mathe- 
matics, as  far  as  plane  Trigonometry.  Sometimes  the 
candidate's  knowledge  of  the  rudimentary  branches  is 
tested,  but  he  is  supposed  to  know  them. 

Such  certificate  shall  be  endorsed  with  the  approval 
of  a  judge  and  filed  with  the  Prothonotary,  and  recorded 
in  the  appearance  docket.  Upon  application  for  ad- 
mission of  a  student  to  practice,  it  is  required  that  he 
be  a  resident  of  the  State,  of  full  age ;  that  he  shall 
have  studied  law  at  least  three  years  after  the  filing 
of  said  certificate,  under  the  direction  of  a  member  of 
the  Bar  of  this  State  who  has  been  in  practice  for  at 
least  ten  years  theretofore,  or  of  a  Judge  of  any  of  the 
courts  of  the  State,  or  of  a  Judge  of  a  court  of  the 
United  States  residing  in  this  State ;  that  he  be  a  per- 
son of  integrity  and  good  character,  and  that  he  shall 
have  been  privately  and  fully  examined  by  said  Board 
of  Examiners,  and  he  shall  be  admitted  only  on  the 


TO  THE  BAR  !N  ALL  THE  STATES.  241 

written  report  of  said  Board,  stating  his  qualifications 
and  recommending  his  admission. 

Examinations  may  be  oral  or  in  writing,  or  both,  at 
the  discretion  of  the  Board.  The  action  of  a  majority 
of  the  Board  shall  in  all  cases  be  sufficient. 

Attorneys  admitted  elsewhere,  if  they  be  residents 
of  this  State,  of  good  character,  and  have  practiced  for 
three  years  in  the  Superior  Court  of  any  other  State, 
upon  the  written  report  of  the  Board  of  Examiners 
stating  their  qualifications  and  recommending  their  ad- 
mission, may,  in  the  discretion  of  the  court,  be  admitted 
to  practice  in  this  State.  Said  Board  is  authorized  to 
subject  any  applicant  under  this  rule  to  such  examina- 
tion as  they  may  deem  expedient. 

Attorneys  may  be  admitted  pro  hac  vice  in  the  dis- 
cretion of  the  court,  but  no  attorney,  while  engaged  in 
the  practice  of  law  in  another  State,  shall  be  admitted 
to  practice  in  this  State  except  pro  hac  vice.  . 

A  separate  examination  is  necessary  for  admission  to 
practice  in  the  Court  of  Chancery. 

Florida. 

Candidates,  upon  presenting  to  one  of  the  Judges 
of  the  Circuit  Court  satisfactory  evidence  that  they  are 
twenty-one  years  of  age,  and  of  good  moral  character, 
shall  be  examined  by  the  court  or  a  committee  ap- 
pointed for  that  purpose,  and,  if  found  qualified,  shall 
be  admitted.  Attorneys  who  have  been  admitted  to 
practice  in  any  court  of  record  in  any  State  of  the 
Union  shall  be  admitted  to  practice  in  any  court,  upon 
producing  evidence  of  having  been  so  admitted. 

Georgia. 

Attorneys  admitted  to  practice  in  the  Superior 
Courts  may  practice  in  all  courts  except  the  Supreme 
Court ;  for  which  a  special  license  must  be  obtained. 


242  RULES   REGULATING  ADMISSION 

For  the  purpose  of  admission  to  the  Bar,  the  candidate 
must  apply,  by  petition,  to  a  Superior  Court  during 
one  of  its  sessions  in  the  circuit  of  which  he  is  a  res- 
ident or  in  which  he  has  read  law,  and  must  show — (i) 
his  citizenship  in  the  United  States,  (2)  good  moral 
character,  (3)  that  he  has  read  Law,  (4)  that  he  has 
been  a  resident,  or  that  he  has  read  law  in  the  circuit 
aforesaid.  Of  these  facts  there  must  be  a  certificate  of 
two  attorneys  of  the  court,  or  other  evidence  satisfac- 
tory to  the  court.  The  applicant  must  be  examined  in 
open  court  upon — 

1.  The  principles  of  the  Common  and  Statute  Law 
of  England  in  force  in  Georgia. 

2.  The  Law  of  Pleading  and  Evidence. 

3.  The  principles  of  Equity  and  of  Equity  Pleading 
and  Practice. 

4.  The  Revised  Code  of  Georgia,  the  Constitution  of 
the    United    States,    the     Rules   of   Practice    in    the 
Superior  Courts. 

Graduates  of  the  Lumpkin  Law  School,  and  of  the 
Law  Department  of  Mercer  University,  are  admitted 
to  practice  upon  presentation  of  diplomas. 

Attorneys  from  other  States  are  admitted  to  practice 
in  Georgia  upon  producing  proof  of  such  admission, 
and  undergoing  an  examination  touching  the  laws  of 
Georgia,  by  the  Superior  Court,  provided  that  such 
other  States  permit  Georgia  attorneys  to  practice  in 
their  courts. 

Attorneys  from  other  States  who  become  actual  res- 
idents of  Georgia  are  admitted  to  practice  upon  un- 
dergoing an  examination  as  to  the  laws  of  Georgia, 
given  by  the  Superior  Court,  after  producing  to  the  court 
satisfactory  evidence  that  they  were  attorneys-at-la\v 
in  good  standing  in  a  court  of  similar  jurisdiction  in 
the  State  from  which  they  came.  Attorneys  who  have 
been  admitted  to  practice  in  the  Superior  Court  of 


TO   THE    BAR   IN   ALL  THE   STATES.  243 

Georgia  are  admitted  to  practice  in  the  Supreme  Court 
upon  producing  satisfactory  proof  of  good  private  and 
professional  character.  The  recommendation  of  one  or 
more  respectable  members  of  the  Bar  is  sufficient,  and 
is  always  required. 

Aliens  are  eligible  for  admission  to  the  Bar  after  a 
residence  of  two  years  in  the  State. 

Idaho. 

Any  white,  male  citizen,  or  one  who  has  bona  fide 
declared  his  intention  of  becoming  a  citizen,  in  the 
manner  required  by  law,  of  the  age  of  twenty-one,  of 
good  moral  character,  upon  producing  satisfactory 
testimonials  of  good  character  and  undergoing  a  strict 
examination  by  the  Justices  of  the  Supreme  Court, 
may  be  admitted  to  practice.  District  Courts  may 
admit  persons  to  practice  in  their  respective  districts 
in  like  manner. 

Attorneys  who  have  been  admitted  to  practice  in  the 
highest  court  of  any  other  State  or  Territory  are  admit- 
ted to  practice  in  Idaho,  upon  affidavit  of  such  admission 
or  the  production  of  a  license  showing  the  same. 

Illinois. 

Applicants  must  have  studied  law  for  two  years  in 
the  office  of  an  attorney  or  at  a  law  school.  There 
must  be  a  certificate  from  some  court  of  record  in  the 
county  in  which  the  applicant  has  studied  as  to  his  good 
character.  Diplomas  from  law  schools  organized  under 
the  laws  of  the  State,  in  which  the  regular  course  con- 
sists of  two  years,  with  thirty-six  weeks  to  the  year, 
may  be  accepted  in  place  of  the  examination,  but  a 
motion  for  the  admission  of  the  party  having  the 
diploma  must  be  made  by  some  attorney  of  the  court, 
supported  by  proof  of  good  moral  character. 

Examinations  are  given  by  the  Appellate  and   Su- 


244  RULES   REGULATING  ADMISSION 

preme  Courts,  and  are  both  oral  and  written.  Attorneys 
•  from  other  States  who  wish  to  locate  in  Illinois  may 
be  admitted  without  examination,  if  it  appears  that 
the  State  in  which  the  license  was  issued  requires 
a  two  years'  course  of  study,  or  if  the  applicant  has 
practiced  two  years  in  the  State  from  which  he  comes. 
Otherwise  he  must  be  examined. 

Women  may  be  admitted  to  practice. 

Indiana. 

Every  person  of  good  moral  character,  being  a  voter, 
shall  be  entitled  to  admission  to  practice  law  in  all  the 
courts  of  justice.  Six  months'  residence  in  the  State, 
60  days  in  the  township,  and  30  days  in  the  ward  or 
precinct  are  the  qualifications  for  a  voter,  assuming 
him  to  be  of  age.  The  applicant  appears  in  open 
court  and  some  member  of  the  Bar  moves  his  admis- 
sion, whereupon  he  is  sworn  to  perform  the  duties  of 
an  attorney,  etc.  This  is  all  that  is  absolutely  required 
to  enable  a  person  to  practice  law.  A  roll  of  attorneys 
is,  however,  required  to  be  kept  by  every  court,  and  "  no 
names  shall  be  placed  thereon  except  of  such  persons 
as  are  shown  to  be  qualified  to  practice  law  by  reason 
of  their  learning  therein,"  as  shown  by  an  examination 
conducted  by  the  Judge  or  a  committee  of  the  Bar 
whom  the  Judge  may  select  for  that  purpose.  Attor- 
neys from  other  States  are  admitted  on  a  certificate  of 
membership  of  the  Bar  of  the  State  from  which  they 
come.  Graduates  of  law  schools  are  admitted  on  pres- 
entation of  their  diplomas. 

Iowa. 

The  applicant  must  be  twenty-one  years  old,  of  good 
moral  character,  an  inhabitant  of  the  State,  and  must 
actually  and  in  good  faith  have  studied  law  two  years 
either  with  some  member  of  the  Bar  of  Iowa  or  in 


TO   THE   BAR   IN  ALL  THE   STATES.  245 

some  reputable  law  school,  or  in  both.  Thirty-six 
weeks  in  a  law  school  is  equivalent  to  one  year's  study. 
Every  applicant  is  examined  by  the  Supreme  Court  or 
by  a  committee  appointed  by  it  for  the  purpose.  The 
examination  consists  of  not  less  than  thirty  question.' 
in  writing,  and  there  may  also  be  an  oral  examination 
Attorneys  from  other  States  may  be  admitted  witk 
out  examination  and  without  proof  of  having  studied 
law  two  years,  on  satisfactory  proof  that  they  have 
practiced  law  not  less  than  one  year  in  the  State  from 
which  they  came. 

Kansas. 

Any  person,  being  a  citizen  of  the  United  States, 
who  has  read  law  two  years,  the  last  of  which  must  be 
in  the  office  of  a  regularly  practicing  attorney,  who 
shall  certify  that  the  applicant  is  of  good  moral  charac- 
ter and  well  qualified  to  practice  law,  and  who  is  actu- 
ally an  inhabitant  of  Kansas,  and  who  satisfies  any 
district  court  that  he  possesses  the  requisite  learning 
and  is  of  good  moral  character,  may  be  admitted  by 
said  court  to  practice  in  all  the  district  and  inferior 
courts  of  the  State.  The  Supreme  Court  may,  on 
motion,  admit  any  practicing  attorney  in  the  district 
court,  to  practice  in  the  Supreme  Court. 

Attorneys  from  other  States  or  Territories,  having 
business  in  any  court  of  Kansas,  may  be  admitted  to 
practice  in  such  court  on  motion,  upon  taking  the  re- 
quired oath.  Attorneys  from  other  States  locating  in 
Kansas,  must  apply  for  admission  to  a  District  Court, 
whose  Judge  may  admit  on  motion,  or  with  an  exam- 
ination, according  to  his  discretion. 

Kentucky. 

The  applicant  must  obtain  a  certificate  from  the 
county  court  of  the  county  in  which  he  is  a  resident, 
that  he  is  a  person  of  honesty,  probity,  and  good  de- 


246  RULES  REGULATING  ADMISSION 

meaner.  This  certificate  must  be  filed  with  the  clerk 
of  a  Circuit  Court,  on  or  before  the  fourth  day  of  the 
regular  term  of  the  court,  which  filing  shall  be  regarded 
as  an  application  for  a  license.  On  the  fourth  day  of 
the  term,  the  court  shall  appoint  two  examiners  whose 
certificate  to  the  effect  that  the  candidate  has  passed  a 
satisfactory  examination,  after  being  approved  by  the 
Judge  of  the  court,  shall  be  a  license  to  practice  law  in 
any  courts  of  the  State.  The  certificate  of  the  County 
Judge  may  be  presented  to  a  Judge  of  the  Court  of 
Appeals,  who,  with  another  Judge  of  that  court,  shall 
examine  the  applicant. 

Attorneys-at-law  of  any  State  in  the  United  States, 
who  have  been  regularly  admitted  to  practice  in  the 
Supreme  Courts  of  their  own  States,  may  be  admitted 
to  practice  law  in  any  of  the  courts  of  Kentucky  upon 
motion. 

Louisiana. 

Any  citizen  of  the  United  States  possessing  the 
qualifications — except  that  of  residence — necessary  to 
constitute  a  legal  voter,  shall  be  admitted  to  practice 
upon  obtaining  a  license  from  the  Supreme  Court. 
The  Supreme  Court  shall  grant  licenses  to  the  follow- 
ing: (i).  To  graduates  of  the  Law  Department  of  the 
University  of  Louisiana,  upon  producing  evidence  of 
good  character.  (2).  When  the  applicant  produces  a 
license  to  practice  law  in  any  other  State  of  the  Union, 
or  a  diploma  from  any  law  school  in  any  other  State, 
upon  being  examined  in  open  court  touching  the  can- 
didate's fitness  to  practice  in  the  courts  of  Louisiana. 
(3).  Other  applicants  are  examined  by  the  Supreme 
Court  on  the  general  law  and  the  civil  law  as  applied 
in  the  courts  of  Louisiana. 


TO   THE   BAR   IN  ALL  THE   STATES.  247 

Maine. 

The  candidate  must  have  studied  law  two  years  in 
the  office  of  some  attorney,  or  a  part  of  the  time  may 
be  spent  in  such  office  and  the  remainder  in  some  law 
school.  Notice  of  the  candidate's  application  for  ad- 
mission to  the  Bar  must  be  published  in  some  news- 
paper by  the  clerk  of  the  court  to  which  application  is 
made  thirty  days  before  the  examination.  Every  can- 
didate must  present  to  the  examining  committee  a 
written  recommendation  from  the  member  of  the  Bar 
with  whom  he  has  studied. 

The  examinations  are  public  and  are  held  in  the 
presence  of  some  Justice  of  the  Supreme  Court  during 
term  time.  They  are  conducted  by  an  examining  com- 
mittee of  the  Bar  in  each  county,  and  this  committee  is 
appointed  by  the  Chief-Justice  of  the  Supreme  Court. 
The  examinations  are  both  oral  and  written. 

Attorneys  from  other  States  who  have  been  in  good 
standing  and  in  active  practice  for  three  years  are  ad- 
mitted upon  motion,  and  without  examination. 

Maryland. 

Applications  for  admission  may  be  addressed  to  one 
of  the  Circuit  Courts,  to  the  Court  of  Appeals,  and  by 
candidates  from  the  city  of  Baltimore  to  the  Supreme 
Bench  for  Baltimore.  The  candidate  must  be  a  male 
white  citizen  of  the  United  States,  and  must  have 
studied  law  in  any  portion  of  the  United  States  for 
two  years  preceding  his  application.  He  is  examined 
by  a  Board  consisting  of  not  less  than  three  members 
of  the  Bar.  Evidence  of  good  moral  character  must  be 
produced.  Rejected  applicants  cannot  apply  again  in 
less  than  twelve  months. 

Attorneys  from  other  States  or  Territories  are  ad- 
mitted to  practice  in  the  same  manner  in  which  at- 
torneys from  Maryland  are  admitted  to  practice  in  those 


248  RULES   REGULATING   ADMISSION 

States  or  Territories,  provided  that  the  terms  for  ad- 
mission to  the  Bar  are  regulated  by  law.  Where  there 
are  no  such  regulations,  the  court  to  which  application 
is  made  may  admit  or  not,  according  to  its  discretion. 
An  applicant  rejected  by  the  other  courts  of  Maryland 
may  appeal  to  the  Court  of  Appeals,  whose  decision  in 
the  matter  shall  be  final. 

Massachusetts. 

The  application  must  be  made  by  way  of  petition  to 
the  Supreme  or  the  Superior  Court,  which  petition  may 
be  filed  at  any  time  prior  to  the  examination.  The 
examination  is  conducted  by  an  examining  committee, 
usually  consisting  of  three  members  of  the  Bar,  and  its 
nature  varies  in  the  different  counties,  in  some  of  which 
it  is  wholly  oral,  while  in  others  it  is  both  written 
and  oral.  The  candidate  must  be  twenty-one  years  old, 
of  good  moral  character,  and  must  declare  his  intention 
to  practice  law  in  the  State.  His  petition  must  be  ap- 
proved by  some  attorney  of  the  court.  No  time  is  re- 
quired, by  statute,  to  be  spent  in  preliminary  study,  but 
it  is  the  unwritten  law  that  at  least  two  years  shall  be 
so  spent.  An  applicant  cannot,  however,  be  refused 
examination  nor  rejected  on  this  ground.  Rejected 
applicants  are  not  permitted  to  apply  again  in  less  than 
six  months. 

Attorneys  from  other  States  who  have  been  admitted 
to  practice  in  the  highest  judicial  courts  of  those  States 
are  admitted  to  practice  in  Massachusetts  upon  satis- 
factory evidence  of  good  moral  character  and  profes- 
sional qualifications.  The  matter  is  usually  referred  to 
the  examining  committee  of  the  county  in  which  the 
application  is  made. 

Women  are  admitted  on  the  same  terms  as  men. 


TO  THE  BAR  IN  ALL  THE  STATES.  249 

Michigan. 

The  applicant  must  address  a  petition  to  the  Circuit 
Court  of  whose  district  he  is  a  resident,  stating  that  he 
is  a  citizen  of  the  United  States,  twenty-one  years  old, 
and  that  he  is  a  resident  of  the  judicial  circuit  in  which 
the  application  is  made.  The  applicant  must  also  state 
the  length  of  time  in  which  he  has  been  engaged  in  the 
study  of  law, — though  no  definite  time  is  needed  to 
entitle  him  to  examination, — and  that  he  believes  him- 
self qualified  to  act  as  a  counsellor-at-law.  The  petition 
must  be  verified  by  oath  and  be  accompanied  by  a 
certificate  of  at  least  one  member  of  the  Bar,  or  some 
other  reputable  person  known  to  the  court,  certifying 
to  the  good  moral  character  of  the  applicant. 

Attorneys  from  other  States  are  usually  admitted 
upon  motion  if  they  have  been  engaged  in  practice  for 
a  considerable  period  ;  otherwise,  after  examination. 

Mississippi. 

The  applicant  must  be  twenty-one  years  old,  a 
citizen  of  the  United  States,  and  a  resident  of  the 
State.  Application  may  be  made  to  the  Supreme 
Court,  or  to  any  Circuit  or  Chancery  Court.  The  ex- 
amination is  held  in  open  court,  and,  if  found  qualified, 
the  candidate  is  admitted  to  practice.  A  diploma  from 
the  Law  Department  of  the  State  University  is  equiv- 
alent to  a  license  to  practice. 

Attorneys  from  coterminous  States  are  admitted  to 
practice  upon  the  same  terms  that  Mississippi  attorneys 
are  admitted  to  practice  in  those  States,  and  are  not 
required  to  take  the  oath  to  support  the  Constitution 
of  Mississippi.  Attorneys  from  other  States,  locating 
in  Mississippi,  are  examined  in  all  cases  prior  to  ad- 
mission. 


250  RULES   REGULATING  ADMISSION 

Missouri. 

The  candidate  must  file  with  the  clerk  of  the  Supreme 
Court,  the  St.  Louis  Court  of  Appeals,  .or  of  some 
Circuit  Court,  fifteen  days  at  least  before  the  first  day 
of  the  next  term,  a  written  application  for  examina- 
tion, in  which  he  states  his  age  and  his  good  moral 
character.  No  prior  residence  is  required,  and  there  is 
no  statutory  regulation  in  regard  to  the  time  to  be 
spent  in  study,  though  it  is  expected  that  two  or  three 
years  will  be  so  spent.  There  must  be  satisfactory 
evidence  of  good  character,  and  the  application  must 
be  approved  by  some  attorney  of  good  standing.  The 
examination  is  conducted  by  the  Judges  in  open  court. 

Attorneys  from  other  States  locating  in  Missouri  are 
admitted  to  practice  upon  passing  a  satisfactory  ex- 
amination. 

Montana. 

Application  for  admission  must  be  made  to  the 
Supreme  Court,  stating  age,  etc.,  accompanied  by  a 
certificate  from  the  court  of  some  county  of  the  appli- 
cant's good  moral  character,  and  there  must  also  be  a 
certificate  from  one  or  more  reputable  counsellors-at- 
law  that  he  has  been  engaged  in  the  study  of  law  for 
two  successive  years  prior  to  his  application.  An  ex- 
amination is  given  by  an  examining  committee  of  three 
attorneys,  appointed  by  the  Supreme  Court  for  each 
judicial  district, 

Attorneys  from  other  States  or  Territories,  locating 
in  Montana,  are  admitted  to  practice  without  exami- 
nation, upon  presenting  to  the  Supreme  Court  a  peti- 
tion which  shall  state  where  the  candidate  read  law 
and  was  admitted,  where  he  has  practiced  his  pro- 
fession, and  when,  where,  and  how  long  he  was  last  en- 
gaged in  the  practice  of  law.  The  petition  must  be 
accompanied  by  a  certificate  of  the  presiding  Judge  of 


TO   THE   BAR   IN   ALL  THE   STATES.  251 

the  highest  court  in  which  he  last  practiced  that  he 
was  of  good  standing  in  his  profession  in  that  jurisdic- 
tion. The  petition  must  also  state  whether  or  not  any 
proceedings  for  disbarment  have  ever  been  had  against 
the  applicant  in  any  court  of  any  State,  and  must  be 
verified  by  affidavit. 

Nebraska. 

Application  is  usually  made  for  admission  to  the 
Circuit  Court  of  the  judicial  circuit  in  which  the  appli- 
cant resides.  A  person  admitted  to  practice  in  the 
Circuit  Courts  is  admitted  to  practice  in  the  Supreme 
Court  on  motion. 

The  candidate  must  be  twenty-one  years  old,  of  good 
moral  character,  and  must  have  studied  law  two  years 
and  must  pass  a  satisfactory  examination  on  the  prin- 
ciples of  the  Common  Law. 

Any  person  producing  a  license  or  satisfactory 
voucher  proving  that  he  has  been  regularly  admitted  as 
an  attorney-at-law  in  any  court  of  record  in  the  United 
States,  and  that  he  is  of  good  moral  character,  may  be 
admitted  to  practice  in  any  court  of  the  State,  without 
examination. 

New  Hampshire. 

Students  are  eligible  for  examination  for  admission 
to  the  Bar  who  have  studied  for  three  years  in  the 
office  of  an  attorney,  or  who  have  studied  for  two  years 
in  an  office  of  some  counsellor  of  the  highest  court  of  an- 
other State  and  one  year  in  the  office  of  a  New  Hamp- 
shire attorney. 

Examinations  are  held  by  the  Supreme  Court,  or 
by  a  committee  of  the  Bar  appointed  for  the  purpose. 

Attorneys  who  have  been  admitted  to  practice  in  the 
highest  judicial  court  of  another  State  may  be  admitted 
to  practice  in  the  courts  of  New  Hampshire  upon 


RULES   REGULATING  ADMISSION 

satisfactory  evidence  of  good  moral  character,  without 
examination,  where  the  circumstances  of  the  case 
render  it  unnecessary.  By  a  Rule  of  Court,  attorneys 
who  have  practiced  one  year  in  other  States  may  be 
admitted  upon  furnishing  satisfactory  evidence  thereof. 

New  Jersey. 

The  candidate  must  be  twenty-one  years  old,  and 
cannot  be  admitted  to  examination  unless  he  shall  have 
served  a  regular  clerkship  with  some  practicing  attor- 
ney of  the  Supreme  Court  for  the  term  of  three  years  at 
least,  if  he  shall  have  been  previous  to  the  commence- 
ment of  such  service,  admitted  to  the  degree  of  Bachelor 
of  Arts  or  of  Science  in  any  college  or  university  in 
the  United  States,  and  for  the  term  of  four  years,  if  he 
shall  not  have  been  so  admitted.  He  must  produce  to 
the  court  a  certificate  from  the  person  with  whom  his 
clerkship  has  been  served,  or  other  satisfactory  evidence 
that  he  has  not,  at  any  time  during  such  clerkship, 
been  engaged  in,  or  pursued  any  occupation  or  employ- 
ment, incompatible  with  the  full,  fair,  and  bona  fide 
service  of  his  clerkship.  Any  portion  of  time,  not  ex- 
ceeding eighteen  months,  spent  in  regular  attendance 
upon  the  law  lectures  in  any  college  or  university,  or 
in  any  law  school  of  established  reputation  in  the 
United  States,  shall  be  allowed  in  lieu  of  an  equal 
period  of  clerkship. 

No  attorney  from  another  State  shall  be  licensed  to 
practice  unless  he  shall  first  submit  himself  to  an  exam- 
ination ;  nor  shall  he  be  admitted  to  the  examination, 
unless  the  time  which  he  shall  have  served  as  a  clerk, 
and  the  time  he  shall  have  practiced  as  an  attorney 
shall,  in  the  whole,  amount  to  four  years  at  least,  and 
shall  produce  satisfactory  proof  of  his  moral  and  pro- 
fessional standing  in  the  State  from  whence  he  comes ; 
provided  that  no  such  person  shall  be  admitted  at  all, 


TO   THE   BAR   IN  ALL   THE   STATES.  253 

unless  an  attorney  from  this  State  would  be  admitted 
in  such  State  on  the  same  or  equally  favorable  terms. 
The  examinations  are  conducted  by  a  Board  of  Exam- 
iners, consisting  of  six  counsellors  of  the  Supreme 
Court.  They  are  both  oral  and  written. 

A  distinction  is  made  between  counsellors  and  at- 
torneys. The  latter  must  be  examined,  and  must 
have  practiced  for  three  years  before  they  are  entitled 
to  an  examination  to  become  counsellors.  The  exami- 
nation in  this  case  is  upon  the  principles  and  doctrinesof 
the  law,  and  upon  the  candidate's  ability  as  a  pleader. 

New   York. 
RULE    I. 

No  person  shall  be  admitted  to  practice  as  an  attor- 
ney or  counsellor  in  any  Court  of  Record  in  this  State, 
without  a  regular  admission  to  the  bar  and  license  to 
practice  granted  by  an  Appellate  Division  of  the  Su- 
preme Court. 

RULE    II. 

Any  person  who  has  been  admitted  to  practice,  and 
has  practiced  three  years  as  an  attorney  and  counsellor 
in  ths  highest  court  of  law  in  another  State,  and  any 
person  who  has  thus  practiced  in  another  country,  or 
who,  being  an  American  citizen  and  domiciled  in  a 
foreign  country,  has  received  such  diploma  or  degree 
therein,  as  would  have  entitled  him,  if  a  citizen  of  such 
foreign  country,  to  practice  law  in  its  courts  may,  in 
the  discretion  of  an  Appellate  Division  of  the  Supreme 
Court,  be  admitted  and  licensed  without  an  examina- 
tion. But  he  must  possess  the  other  qualifications  re- 
quired by  these  rules,  and  must  produce  a  letter  of 
recommendation  from  one  of  the  Judges  of  the  highest 
Court  of  law  of  such  other  State,  or  country,  or  fur- 
nish other  satisfactory  evidence  of  character  and  quali- 
fications. 


254  RULES   REGULATING  ADMISSION 

RULE    III. 

All  other  persons  may  be  admitted  and  licensed 
upon  producing  and  filing  with  the  Court  the  certifi- 
cate of  the  State  Board  of  Law  Examiners  that  the 
applicant  has  satisfactorily  passed  the  examination 
prescribed  by  these  rules  and  has  complied  with  their 
provisions  ;  and  upon  producing  and  filing  with  the 
Court  evidence  that  such  applicant  is  a  person  of  good 
moral  character,  which  may  be  shown  by  the  certifi- 
cate of  the  attorney  with  whom  he  has  passed  his 
clerkship,  or  by  some  attorney  in  the  town  or  city 
where  he  resides,  but  such  certificate  shall  not  be  con- 
clusive, and  the  Court  may  make  further  examination 
and  inquiry. 

RULE    IV. 

To  entitle  an  applicant  to  an  examination  as  an  at- 
torney and  counsellor,  he  must  prove,  by  his  own  affi- 
davit, to  the  satisfaction  of  the  State  Board  of  Law 
Examiners  : 

First.  That  he  is  a  citizen  of  the  United  States, 
twenty-one  years  of  age,  stating  his  age,  and  a  resi- 
dent of  the  State,  and  that  he  has  not  been  examined 
for  admission  to  practice  and  been  refused  admission 
and  license  within  three  months  immediately  preceding. 

Second.  That  he  has  studied  law  in  the  manner  and 
according  to  the  conditions  hereinafter  prescribed  for 
a  period  of  three  years,  and  that  he  is  the  same  per- 
son mentioned  in  his  annexed  preliminary  papers,  ex- 
cept that  if  the  applicant  be  a  graduate  of  any  college 
or  university,  his  period  of  study  may  be  two  years 
instead  of  three  ;  and  except  also  that  persons  who 
have  been  admitted  as  attorneys  in  the  highest  Court 
of  original  jurisdiction  of  another  State  or  country, 
and  have  remained  therein  as  practicing  attorneys  for 
at  least  one  year,  may  be  admitted  to  such  examina- 


TO   THE   BAR  IN  ALL   THE   STATES.  255 

tion  after  a  period  of  law-study  of  one  year  within  this 
State. 

RULE   V. 

Applicants  for  examination  shall  be  deemed  to  have 
studied  law  within  the  meaning  of  these  rules  only 
when  they  have  complied  with  the  following  terms 
and  conditions — viz.  : 

1.  The    provisions    for   requisite   periods   of   study 
must  be  fulfilled  by  serving  a  regular  clerkship  in  the 
office  of  a  practicing  attorney  of  the  Supreme  Court 
in  this  State  after  the  age  of  eighteen  years  ;  or  after 
such  age,  by  attending  an  incorporated  law  school,  or 
a  law  school  connected  with  an  incorporated  college  or 
university  having  a  law  department   organized  with 
competent    instructors   and   professors,  in    which   in- 
struction   is   regularly  given  ;  or   after  such  age,  by 
pursuing  such  course  of  study,  in  part  by  attendance 
at  such  law  school,  and  in  part  by  serving  such  clerk- 
ship. 

2.  If  the  applicant  be  a  graduate  of  a  college  or  uni- 
versity, he  must  have  pursued  the  prescribed  course 
of  study  after  his  graduation  ;  and  if  he  be  a  person 
admitted  to  the  bar  of  another  State  or  country,  he 
must  have  pursued  his  prescribed  period  of  study  after 
having  remained  an  attorney  in  such  other  State  or 
country  for  the  period  of  one  year. 

3.  Applicants  who  are  not  graduates  of  a  college  or 
university,  or  members  of  the  bar  as  above  prescribed, 
shall,  before  entering  upon  a  clerkship  or  attendance 
at  a  law  school  herein  prescribed,  or  within  one  year 
thereafter,    have    passed    an    examination    conducted 
under  the  authority  and  in  accordance  with  the  ordi- 
nances and  rules  of  the  University  of  the  State  of  New 
York,  in  English  composition,  advanced  English,  first 
year    Latin,    arithmetic,    algebra,    geometry,    United 
States  and  English  history,  civics  and  economics,  or 


RULES   REGULATING  ADMISSION 

in  their  substantial  equivalents  as  defined  by  the  rules 
of  the  University,  and  shall  have  filed  a  certificate  of 
such  fact  signed  by  the  Secretary  of  the  University 
with  the  Clerk  of  the  Court  of  Appeals,  whose  duty  it 
shall  be  to  return  to  the  person  named  therein  a  certi- 
fied copy  of  the  same  showing  the  date  of  such  filing. 
The  Reg.nts  may  accept  as  the  equivalent  of  and  sub- 
stitute for  the  examination  in  this  rule  prescribed 
either,  first,  a  certificate  properly  authenticated,  of 
having  successfully  completed  a  full  year's  course  of 
study  in  any  college  or  university  ;  second,  a  certifi- 
cate properly  authenticated,  of  having  satisfactorily 
completed  a  three  years'  course  of  study  in  any  insti- 
tution registered  by  the  Regents  as  maintaining  a  sat- 
isfactory academic  standard  ;  or,  third,  a  Regents' 
diploma.  The  Regents'  ceitificate  above  prescribed 
shall  be  deemed  to  take  effect  as  of  the  date  of  the 
completion  of  the  Regents'  examination,  as  the  same 
shall  appear  upon  said  certificate. 

Attendance  on  a  law  school  during  a  school  year  of 
not  less  than  eight  months  in  any  year,  shall  be 
deemed  a  year's  attendance  under  this  rule  ;  and  in 
computing  the  period  of  clerkship  a  vacation  actually 
taken,  not  exceeding  two  months  in  each  year  shall  be 
allowed  as  part  of  such  year. 

It  shall  be  the  duty  of  attorneys,  with  whom  a 
clerkship  shall  be  commenced,  to  file  a  certificate  of 
the  same  in  the  orifice  of  the  Clerk  of  the  Court  of  Ap- 
peals, which  certificate  bhall  in  each  case  state  the 
date  of  the  beginning  of  the  period  of  clerkship,  and 
such  period  shall  be  deemed  to  commence  at  the  time 
of  such  filing,  and  shall  be  computed  by  the  calendar 
year.  The  same  period  of  time  shall  not  be  duplicated 
for  different  purposes,  except  that  a  student  attending 
a  law  school  as  herein  provided,  and  who,  during  the 
vacations  of  such  school,  not  exceeding  three  months 


TO   THE   BAR   IX   ALL  THE   STATES.  257 

in  any  one  year,  shall  pursue  his  studies  in  the  office 
of  a  practicing  attorney,  shall  be  allowed  to  count  the 
time  so  occupied  during  such  vacation  or  vacations  as 
part  of  the  clerkship  in  a  law  office  specified  in  these 
rules. 

RULE   VI. 

The  State  Board  of  Law  Examiners,  before  admit- 
ting an  applicant  to  an  examination,  shall  require 
proof  that  the  preliminary  conditions  prescribed  by 
these  rules  have  been  fulfilled  ;  which  proof  shall  be 
made  as  follows — viz.  : 

1.  That  the  applicant  is  a  college  graduate,  by  the 
production  of  his  diploma  or  certificate  of  graduation 
under  the  seal  of  the  college. 

2.  That  he  has  been  admitted  to  the  bar  of  another 
State  or  country,  by  the  production  of  his  license  or 
certificate  executed  by  the  proper  authorities. 

3.  That  he  has  served  a  regular  clerkship  in  the 
office  of  a  practicing  attorney  of  the  Supreme  Court  in 
this  State,  after  the  age  of  eighteen  years,  by  produc- 
ing and  filing  with  the  Board  a  certified  copy  of  the 
attorney's  certificate  as  filed  in  the  office  of  the  Clerk 
of  the  Court  of  Appeals,  and  producing  and  filing  an 
affidavit  of  the  attorney  or  attorneys,  with  whom  such 
clerkship  was  served,  showing  the  actual  service  of 
such    a  clerkship,  the  continuance  and  end  thereof, 
and  that   not   more  than  two  months'  vacation  was 
taken  in  any  one  year. 

4.  The  time  of  study  allowed  in  a  law  school  must 
be  proved  by  the  certificate  of  the  teacher  or  presi- 
dent of  the  faculty  under  whose  instructions  the  per- 
son has  studied,  under  the  seal  of  the  school,  if  such 
there  be,  in  addition  to  the  affidavit  of  the  applicant, 
which  must  also  state  the  age  at  which  the  applicant 
began  his  attendance  at  such  law  school,  which  proof 
must  be  satisfactory  to  the  Board  of  Examiners. 


258  RULES   REGULATING   ADMISSION 

5.  That  the  applicant  has  passed  the  Regents'  ex- 
amination or  its  equivalent,  must  be  proved  by  the 
production  of  a  certified  copy  of  the  Regents'  certifi- 
cate filed  in  the  office  of  the  Clerk  of  the  Couit  of  Ap- 
peals, as  hereinbefore  provided. 

6.  When  it  satisfactorily  appears  that  any  diploma, 
affidavit,   or  certificate   required   to  be  produced   has 
been  lost  or  destroyed  without  the  fault  of  the  appli- 
cant, or  has  been  unjustly  refused  or  withheld,  or  by 
the  death   or  absence  of  the  person   or   officer   who 
should  have  made  it,  cannot  be  obtained,  the  Board 
of  Law  Examiners  may  accept  such  other  proof  of  the 
requisite  facts  as  they  shall  deem  sufficient. 

7.  A  law  student  whose  clerkship  or  attendance  at  a 
law  school  has  already  begun,  as  shown  by  the  record 
of  the  Court  of  Appeals,  or  of  any  incorporated  law 
school,  or  law  school  established  in  connection  with 
any  college  or  university,  may  at  his  option  file  or  pro- 
duce instead   of  the  proofs  required   by    these  rules 
those  required   by  the  rules  of  the  Court  of  Appeals 
adopted  October  28,  1892. 

RULE   VII. 

When  the  filing  of  a  certificate  as  required  by  these 
rules  has  been  omitted  by  excusable  mistake,  or  with- 
out fault,  the  court  may  order  such  filing  as  of  the 
proper  date.  All  certificates  heretofore  issued  to  law 
students  by  the  Board  of  Regents  and  founded  upon 
equivalents  instead  of  an  actual  examination,  are  vali- 
dated and  made  effectual,  and  may  be  accepted  as 
sufficient  by  the  Board  of  Law  Examiners. 

RULE    VIII. 

The  State  Board  of  Law  Examiners  shall  be  paid  as 
compensation,  each  the  sum  of  two  thousand  dollars 
per  year,  and,  in  addition,  such  further  sum  as  the 
Court  may  direct,  and  an  annual  sum  not  exceeding 


TO   THE   BAR   IX   ALL   THE   STATES.  259 

two  thousand  dollars  per  year  shall  be  allowed  for  nec- 
essary disbursements  of  the  Board.  Every  applicant 
for  examination  shall  pay  to  the  examiners  a  fee  of 
fifteen  dollars,  which  shall  be  applied  upon  the  com- 
pensation and  allowance  above  provided,  and  any  sur- 
plus theieafter  remaining  they  shall  pay  into  the  treas- 
ury of  the  State  ;  provided,  however,  that  such  com- 
pensation and  allowance  for  any  one  }ear  shall  not 
exceed  the  aggregate  of  fees  received  for  such  year. 
The  examinations  held  by  such  State  Board  of  Exam- 
iners may  be  conducted  by  oral  or  written  questions 
and  answers,  or  partly  oral  and  partly  written,  but 
shall  be  as  nearly  uniform  in  the  knowledge  and 
capacity  which  they  shall  require  as  is  reasonably  pos- 
sible. An  applicant  who  has  failed  to  pass  one  ex- 
amination cannot  again  be  examined,  until  at  least 
three  months  after  such  failure. 

RULE    IX. 

The  State  Board  of  Law  Examiners  shall  hold  at 
least  one  examination  in  each  judicial  department,  at 
the  city  or  village  in  which  the  Appellate  Divisions  of 
the  Supreme  Court  are  held,  between  the  tenth  day 
of  June  and  the  twentieth  day  of  July  in  each  year, 
and  one  examination  in  each  department  at  the  places 
above  named,  during  the  month  of  January  in  each 
year.  They  may  appoint  other  times  and  places  for 
additional  examinations,  and  may  hold  some  or  all  of 
such  additional  examinations  concurrently  with  the 
regular  or  annual  examinations  of  any  law  school  in 
this  State,  and  any  applicant  entitled  to  be  examined 
may  be  so  examined  in  any  department,  whether  a 
resident  therein  or  not. 

These  rules  shall  take  effect  on  January  I,  1896. 

Nevada. 

Any  white,  male  citizen  of  the  United  States,  of  the 
age  of  twenty-one,  who  possesses  the  requisite  quali- 
fications of  learning  and  ability,  and  is  of  good  moral 
character,  may  be  admitted  to  practice  law  in  all  the 
courts  of  Nevada.  An  examination  is  held  by  a  com- 
mittee for  each  judicial  district,  consisting  of  at  least 
three,  of  whom  the  District  Judge  is  one.  The  testi- 
monials of  good  character  and  the  examination  may 


26o  RULES   REGULATING  ADMISSION 

be  dispensed  with  in  the  discretion  of  the  Supreme 
Court. 

Attorneys  from  other  States  are  admitted  to  practice 
in  Nevada  upon  making  affidavit  of  their  admission  to 
practice  in  such  other  States,  or  upon  the  production 
of  their  license.  A  fee  of  $25  must  be  paid  prior  to  the 
application  for  admission,  by  all  candidates.  In  the 
examination  the  questions  and  answers  must  be  in 
writing.  The  following  subjects  may  be  embraced  in 
the  examination  : 

1.  The  history  of  Nevada  and  of  the  United  States. 

2.  The   constitutional    relations   of    the   State   and 
Federal  Governments. 

3.  The  jurisdiction  of  the  various  courts  of  the  State 
and  of  the  United  States. 

4.  The  various  sources  of  our  municipal  law. 

5.  The  general  principles  of   the  common    law  re- 
lating to  property  and  personal  rights  and  obligations. 

6:  The  general  grounds  of  equity  jurisdiction,  and 
the  principles  of  equity  jurisprudence. 

7.  Rules  and  principles  of  pleading  and  evidence. 

8.  Practice  under  the    civil    and   criminal  codes  of 
Nevada. 

9.  Pleadings  in  hypothetical  cases. 

10.  The   course  and   duration    of    the    candidate's 
studies. 

North  Carolina. 

Applicants  who  apply  for  admission  to  practice  in 
all  the  courts  are  examined  by  two  or  more  Justices  of 
the  Supreme  Court.  Sufficient  age,  good  moral 
character,  and  learning  are  the  qualifications.  No 
specified  term  of  preliminary  study  is  required. 

Attorneys  from  other  States  and  foreign  countries 
shall  not  be  admitted  to  practice  in  the  courts  of  North 
Carolina,  unless  they  shall  have  previously  resided  in 
the  State  one  year,  or  unless  they  shall  produce  to  the 


TO   THE   BAR   IN   ALL   THE   STATES.  261 

Justices  of  the  Supreme  Court  a  testimonial  from  the 
chief  magistrate  of  such  State  or  country,  or  from  some 
other  competent  authority,  that  they  are  of  unexcep- 
tionable moral  character. 

(For  North  Dakota  see  South  Dakota.) 

Ohio. 

The  applicant  must  be  twenty-one  years  old,  must 
have  resided  in  the  State  for  the  year  next  pre- 
ceding his  application  for  admission,  and  must  be  a 
citizen  of  the  United  States,  or  have  declared  his  in- 
tention of  becoming  a  citizen  thereof.  He  must  pro- 
duce from  some  attorney  a  certificate  to  the  effect  that 
the  applicant  is  of  good  moral  character  and  that  he 
has  regularly  and  attentively  studied  law  during  a  period 
of  two  years  previous  to  his  application  for  examina- 
tion, and  that  he  believes  him  to  be  a  person  of  suffi- 
cient legal  knowledge  and  ability  to  practice  law. 

Attorneys  from  other  States  who  locate  in  Ohio 
may  be  admitted  to  examination  upon  proving  that 
they  have  studied  law  for  two  years  with  some  attorney 
— the  signature  to  whose  certificate,  if  unknown  to  the 
court,  must  be  authenticated  by  the  certificate  of  the 
clerk  under  the  seal  of  the  court  of  the  State  from 
which  the  applicant  comes — or  that  they  have  been 
engaged  in  the  practice  of  law  for  two  years,  which 
practice  must  be  certified  to  by  a  Judge  of  the  court, 
or  an  attorney  in  good  standing  at  the  Bar,  authenti- 
cated in  like  manner. 

Women  are  admitted  on  the  same  terms  as  men. 

Oregon. 

Applicants  are  examined  by  the  Justices  of  the  Su- 
preme Court,  or  under  their  direction,  upon  the  com- 
mon law,  the  law  merchant,  the  principles  of  equity 
jurisprudence,  the  history  and  constitutional  law  of 


262  RULES  REGULATING  ADMISSION 

England  prior  to  the  Declaration  of  Independence, 
the  history  and  constitutional  law  of  the  United 
States,  the  statute  and  constitutional  law  of  Oregon, 
and  the  practical  administration  of  the  law.  Every 
applicant  must  produce  the  certificate  of  some  attorney 
of  good  standing,  that  such  applicant  has  read  law  at 
least  two  years,  if  a  graduate  of  some  literary  instit- 
tution,  or  if  not  such  a  graduate,  at  least  three  years, 
and  that  he  has  the  requisite  learning  and  ability. 
There  must  also  be  a  certificate  of  two  attorneys  that 
the  applicant  is  a  man  of  good  character.  The  certi- 
ficate of  the  length  of  time  spent  in  study  is  dispensed 
with  if  the  applicant  produces  a  diploma  from  any 
regular  law  school,  showing  that  he  has  graduated  at 
such  school.  The  applicant  must  also  file  his  affidavit 
that  he  is  a  citizen  of  the  United  States,  and  has  read  the 
books,  a  list  of  which  shall  be  included  in  his  affidavit. 

Attorneys  who  have  been  admitted  to  the  Bar  of  the 
Supreme  Court  or  court  of  last  resort  of  any  other 
State  or  Territory,  or  of  England,  her  colonies  and  de- 
pendencies where  the  common  law  prevails,  and  who 
are  otherwise  qualified,  may  be  admitted  to  practice  in 
the  courts  of  Oregon  on  motion  founded  upon  proper 
certificates  of  admission  to  such  courts,  accompanied 
by  a  certificate  signed  by  a  Judge  of  some  court  of 
general  jurisdiction  in  the  county  in  which  the  appli- 
cant last  resided  that  he  is  of  good  moral  character  and 
standing  at  the  Bar,  and  has  practiced  law  at  least  one 
year. 

Women  are  admitted  upon  the  same  terms  as  men. 

Pennsylvania. 

The  rules  in  this  State  vary  somewhat  in  the  different 
counties.  The  following  are  those  operating  in  Alleghany 
County,  which  may  be  taken  as  a  type  of  those  prevailing 
throughout  the  State. 


TO   THE   BAR   IN   ALL   THE   STATES.  263 

It  shall  be  the  duty  of  every  attorney  to  register 
with  the  Prothonotary  the  name,  age,  and  place  of 
residence  of  every  person  studying  law  under  his 
direction,  and  the  term  of  study  shall  be  computed 
from  such  registration.  But  no  person  shall  be  regis- 
tered as  a  student  of  law  until  he  shall  have  been  ex- 
amined by  the  Board  of  Examiners  on  the  elements  of 
the  Latin  language  and  all  the  branches  of  a  thorough 
English  education,  including  algebra,  geometry,  and 
natural  sciences,  or  fair  equivalents  therefor. 

No  person  shall  be  admitted  to  practice  as  an  attorney 
except  upon  the  following  conditions: 

ist.  He  shall  be  a  citizen  of  the  United  States  and 
of  full  age. 

2d.  Every  student  applying  for  admission  shall  first 
cause  notice  to  be  published  in  the  Pittsburg  Legal 
Journal,  of  his  intention  to  make  such  application,  for 
one  week  prior  to  his  examination  by  the  Board  of  Ex- 
aminers, which  notice  shall  set  forth  the  name  of  the 
applicant,  in  whose  office  he  has  studied,  and  at  what 
time  he  will  apply  to  be  admitted. 

3d.  He  shall  have  served  a  regular  clerkship  in  the 
office,  and  shall  have  studied  under  the  direction  of  an 
attorney  or  judge,  for  three  years,  or  pursued  the  study 
of  law  in  some  law  school  of  good  repute,  or,  after  be- 
ing of  full  age,  he  shall  have  pursued  his  studies  'dili- 
gently in  the  office  of  some  practicing  attorney  or  of  a 
judge,  for  the  term  of  two  years ;  provided  that  a  course 
of  study  in  any  law  school  of  good  repute  shall  be 
deemed  equivalent  to  a  like  term  of  study  in  the  office 
of  an  attorney. 

4th.  He  shall  undergo  an  examination  by  a  Board  of 
Examiners,  appointed  by  the  court,  on  the  principles 
and  practice  of  law  and  equity,  and  shall  file  with  the 
Prothonotary,  at  the  time  his  admission  is  moved  for,  a 
certificate  signed  by  all  the  examiners  who  were 


264  RULES   REGULATING  ADMISSION 

present  at  his  examination,  that  he  is  sufficiently 
qualified  for  admission  to  the  Bar,  and  that  they 
have  received  satisfactory  evidence  of  his  good  moral 
character. 

The  examination  shall  consist  partly  of  written  ques- 
tions, to  be  answered  in  writing  by  the  student,  which 
questions  and  answers  shall  be  reported  to  the  court. 

Unless  otherwise  specially  ordered,  no  person  ad- 
mitted to  practice  in  other  States  shall  be  admitted  to 
practice  in  Pennsylvania,  until  he  shall  have  appeared  be- 
fore the  Board  of  Examiners,  and  produced  a  certificate, 
signed  by  all  the  examiners  present  at  his  examination, 
that  they  have  received  satisfactory  evidence  of  his 
moral  character  and  professional  qualifications,  includ- 
ing at  least  two  years  of  diligent  study  or  practice  of 
the  law,  and  recommending  his  admission  to  the  Bar. 
Written  notice  of  his  intention  to  apply  for  such  ad- 
mission shall  be  given  to  the  Board  at  least  two  weeks 
prior  to  such  application.  This  rule  does  not  apply  to 
attorneys  from  other  courts,  seeking  to  be  admitted  for 
special  cases. 

All  motions  for  admission  to  the  Bar  shall  be  made 
by  members  of  the  Board  of  Examiners. 

Rhode  Island. 

Persons  who  have  had  a  classical  education  and  have 
studied  law  two  years,  six  months  of  which  must  have 
been  spent  in  the  office  of  a  counsellor  of  Rhode  Island, 
may  be  admitted,  after  passing  a  satisfactory  examina- 
tion before  an  examining  committee  appointed  by  the 
Supreme  Court.  Three  years  must  be  spent  in  study 
by  those  who  have  not  had  a  classical  education.  There 
must  be  satisfactory  testimonials  of  good  moral 
character. 

Attorneys  from  other  States,  in  order  to  be  admitted 
to  the  Rhode  Island  Bar,  if  they  have  been  in  practice 


TO  THE  BAR  IN  ALL  THE  STATES.  265 

less  than  three  years,  must  be  recommended  by  some 
counsellor  of  Rhode  Island,  must  prove  that  the  same 
time  was  spent  in  study  as  is  required  in  Rhode  Island, 
must  study  six  months  in  the  State,  and  pass  a  satis- 
factory examination.  Attorneys  from  other  States 
who  have  been  in  practice  more  than  three  and  less 
than  ten  years  are  eligible  for  examination  on  recom- 
mendation of  a  Rhode  Island  attorney. 

Attorneys  who  have  been  in  practice  more  than  ten 
years,  may  be  admitted  without  examination  by  special 
permission  of  the  Supreme  Court. 

South  Carolina. 

Applications  for  admission  are  made  to  the  Supreme 
Court.  The  application  should  state  that  the  appli- 
cant is  a  citizen  of  the  State,  twenty-one  years  old,  and 
that  he  has  read  the  course  prescribed  by  the  Supreme 
Court.  In  case  other  books  have  been  read  in  place  of 
those  thus  described,  they  should  be  named.  The  ap- 
plication should  be  accompanied  by  a  certificate  of  a 
practicing  attorney  of  the  Supreme  Court,  that  the  ap- 
plicant is  a  person  of  good  moral  character.  The  ex- 
amination is  conducted  in  writing.  The  following  is 
the  course  of  study  prescribed  : 

Blackstone's  Commentaries;  Kent's  Commentaries; 
Parsons,  or  Chitty,  on  Contracts  ;  Daniel  on  Negotiable 
Instruments,  or  Chitty  on  Bills  ;  Williams  on  Executors ; 
Tidd's  Practice  ;  Pomeroy  on  Remedies ;  Greenleaf  on 
Evidence;  Story's  Equity  Jurisprudence;  Adams' 
Equity;  Daniel's  Chancery  Pleading  and  Practice; 
Bishop  on  Criminal  Law;  Constitution  of  the  United 
States,  Constitution  of  South  Carolina,  General  Statutes 
of  South  Carolina,  and  all  acts  of  a  public  nature  passed 
since ;  Rules  of  Supreme  Court,  Circuit  and  Probate 
Courts. 

Attorneys  from  other  States,  upon  producing  satis- 


266  RULES   REGULATING  ADMISSION 

factory  proof  thereof,  are  admitted  to  practice  in  the 
courts  of  a  similar  grade  of  South  Carolina. 

South  Dakota. 

Any  person,  of  the  age  of  twenty-one,  an  inhabitant 
of  the  State,  who  satisfies  a  court  of  record,  on  exam- 
ination or  by  certificate  of  admission  from  any  other 
State  or  Territory,  that  he  possesses  the  requisite  learn- 
ing and  is  of  good  moral  character,  may  be  admitted  to 
practice. 

(A  similar  regulation  prevails  in  North  Dakota.) 

Tennessee. 

Any  person  may  practice  as  an  attorney  before 
Justices  of  the  Peace  or  the  county  courts,  who  is  of 
good  moral  character  and  twenty-one  years  old.  An 
examination  must  be  passed  before  any  two  Judges  or 
Chancellors  by  those  who  wish  to  practice  in  all  the 
courts  of  the  State.  The  faculty  of  any  law  school  in 
the  State  has  power  to  grant  licenses  to  practice.  Per- 
sons from  other  States  are  licensed  in  like  manner, 
upon  examination  and  satisfactory  evidence  as  to  age 
and  character.  Attorneys  from  other  States,  locating 
in  Tennessee,  are  admitted  to  practice,  upon  producing 
license  and  satisfactory  evidence  of  good  character. 

Texas. 

Application  can  be  made  during  the  term  of  a  Dis- 
trict Court  or  of  the  Supreme  Court,  accompanied  by  a 
certificate  from  the  County  Commissioners'  Court  of  the 
county  in  which  the  applicant  resides,  that  he  has  been 
a  resident  of  the  State  at  least  six  months,  that  he  is 
twenty-one  years  old,  and  is  of  good  moral  character. 
Thereupon  an  examination  is  held  in  open  court  by  a 
committee  of  three  or  more  practicing  attorneys  ap- 
pointed for  that  purpose.  The  candidate  is  expected 


TO   THE   BAR  IN  ALL  THE   STATES.  267 

to  have  studied  Blackstone's  Commentaries;  Kent's 
Commentaries;  Stephen,  Gould,  or  Chitty  on  Plead- 
ing; Story's  Equity  Pleading;  Parsons,  Story,  or  Chitty 
on  Contracts ;  I  Greenleaf,  Starkie,  or  Phillips  on  Evi- 
dence ;  Parsons  or  Daniel  on  Promissory  Notes ;  Story 
orGowon  Partnership;  Story's  Equity  Jurisprudence, 
or  Adams'  Equity;  and  he  must  have  some  general 
knowledge  of  the  State  Constitutions  and  Statutes,  and 
of  the  rules  of  the  District  and  Supreme  Courts  of  the 
State. 

Attorneys  from  other  States  locating  in  Texas,  are 
admitted  to  practice  upon  producing  a  license  of  ad- 
mission to  practice  in  the  States  from  which  they  came, 
together  with  satisfactory  evidence  of  moral  character. 

Utah. 

Any  citizen  of  the  United  States,  or  any  person  who 
has  bona  fide  declared  his  or  her  intention  of  becoming 
one,  in  the  manner  prescribed  by  law,  of  the  age  of 
twenty-one,  of  good  character  and  the  requisite  learn- 
ing and  ability,  may  be  admitted  to  practice.  An  ex- 
amination is  conducted  in  open  court  by  a  committee 
appointed  by  the  Supreme  Court.  District  Courts  may 
admit  persons  to  practice  in  their  respective  districts, 
upon  like  terms  and  in  like  manner.  Attorneys  who 
have  been  admitted  to  the  highest  court  of  any  State 
or  Territory,  may  be  admitted  without  examination, 
upon  affidavit  to  the  fact  of  such  admission  or  upon 
the  production  of  a  license. 

Vermont. 

Students  are  eligible  for  examination  who  have 
studied  in  the  office  of  an  attorney  of  the  Supreme 
Court  for  three  years  next  previous  to  their  application, 
the  last  six  months  of  which  must  be  spent  in  the 
county  where  the  applicant  resides  when  the  applica- 


268  RULES   REGULATING  ADMISSION 

tion  is  made.  Time  spent  in  a  law  school  shall  be 
deemed  an  equivalent  for  time  spent  in  an  attorney's 
office,  except  for  the  last  six  months  of  the  said  three 
years.  A  student  must  file,  as  soon  as  possible,  with 
the  clerk  of  the  court  of  the  county  in  which  he  resides, 
a  notice  stating  that  he  has  commenced  the  study  of 
law  with  the  intention  of  becoming  an  attorney,  and 
with  whom  and  where  he  has  commenced  such  study  ; 
also  a  certificate  of  the  attorney  with  whom  he  is  study- 
ing, stating  that  he  is  so  engaged,  and  when  such  study 
began,  and  the  three  years  commence  from  the  filing  of 
the  notice  and  certificate.  Every  applicant  must  file, 
with  the  clerk  of  the  court  of  the  county  where  he  resides, 
at  least  fourteen  days  before  the  session  of  the  General 
Term  of  the  Supreme  Court,  a  petition  for  admission, 
verified  by  his  affidavit,  stating  age,  residence,  time  of 
study,  and  with  whom  and  where  such  studies  have 
been  pursued.  There  must  also  be  an  affidavit  of  an 
attorney,  stating  that  the  applicant's  studies  have  been 
actually  pursued  three  years.  Certificates  of  at  least 
three  attorneys  are  required  that  the  applicant  is  of 
good  moral  character.  Applicants  are  examined  by  a 
committee  of  the  Bar,  consisting  of  not  less  than  three 
members.  Examinations  are  both  written  and  oral, 
and  are  conducted  in  public.  The  Supreme  Court,  upon 
sufficient  cause  shown,  may  allow  study  in  an  office 
outside  the  State  as  an  equivalent  for  study  in  the 
State. 

Attorneys  from  other  States  are  admitted  to  practice 
in  the  courts  of  Vermont,  without  examination,  on  proof 
that  they  are  attorneys  of  the  highest  courts  of  such 
other  States;  that  they  have  practiced  law  one  year  as 
such,  are  of  good  character,  and  have  resided  for  six 
months  next  preceding  their  application,  in  the  county 
in  Vermont  where  the  application  is  made. 


TO   THE   BAR   IN  ALL  THE   STATES.  269 

Virginia. 

Any  two  Judges  of  the  courts  of  Virginia,  except 
Judges  of  county  and  corporation  courts,  may  grant  a 
license  to  practice  law  to  any  person  who,  on  actual 
examination,  shall  be  found  duly  qualified,  and  who 
shall  produce  a  certificate  from  the  court  of  any  county 
or  corporation  that,  to  the  personal  knowledge  of  the 
Judge  of  such  court,  or  from  the  information  of  credit- 
able witnesses  testifying  on  oath  before  such  court,  the 
court  is  satisfied  that  the  applicant  is  a  person  of 
honest  character,  and  twenty-one  years  of  age. 

Attorneys  from  other  States  and  Territories  may 
practice  as  such  in  the  courts  of  Virginia.  Such  at- 
torney must  produce  to  each  court  in  which  he  intends 
to  practice,  satisfactory  evidence  of  his  having  been 
licensed  in  his  own  State,  and  when  taking  a  license  to 
practice  in  Virginia,  must  take  the  oath  of  fidelity  to 
the  Commonwealth. 

Washington. 

The  following  persons  are  entitled  to  practice  as  at- 
torneys and  counsellors  in  all  courts  of  the  States : 

1.  All  citizens  of  the  United  States  who  present  to 
any  court  of  record  a  license  from  any  court  of  record 
in  any  other  State  or  Territory,  showing  that  the  per- 
son presenting  the  same  has  been  duly  admitted  to 
practice  in  said  court. 

2.  All  citizens  of  the  United  States  who  are  over 
twenty-one  years  of  age  and  who  shall  present  to  any 
court   of  record  in  the  State  a  diploma  from  a  law 
school,  and  are  found  upon  examination  under  the  di- 
rection of  the  court,  to  possess  the  requisite  qualifica- 
tions of  learning  and  ability. 

3.  All  citizens  of  the  United  States,  over  the  age  of 
twenty-one  years,  of  good  moral  character,  and  who 
possess    the   requisite   qualifications   of  learning   and 


2/0  RULES   REGULATING  ADMISSION 

ability,  and  who  shall  be  examined  and  admitted,  ac- 
cording to  the  method  prescribed  by  law.  Appli- 
cants of  the  third  class  must  apply  for  admission  to 
the  Supreme  Court  or  some  district  court,  and  must 
show  that  they  are  of  the  age  of  twenty-one,  which 
may  be  proved  by  their  affidavit,  that  they  are  persons  of 
good  moral  character,  which  may  be  proved  by  certified 
or  other  evidence  satisfactory  to  the  court,  that  they  have 
diligently  studied  the  common  law  and  the  laws  of  the 
State  for  at  least  eighteen  months  previous  to  the  date 
of  their  application,  under  the  direction  of  some  prac- 
ticing attorney  of  the  State,  the  proof  of  which  shall  be 
the  certificate  of  the  attorney  with  whom  the  appli- 
cant has  studied.  The  applicant  is  examined  by  the 
Judges,  or  under  their  direction,  at  the  time  at  which 
application  is  made. 

West  Virginia. 

The  applicant  must  appear  before  the  County  Court 
of  the  county  in  which  he  has  resided  during  the  last 
preceding  year,  and  prove  to  the  satisfaction  of  the 
court  that  he  is  twenty-one  years  old,  of  good  charac- 
ter, and  that  he  has  resided  in  said  county  for  the  year 
next  preceding  the  date  of  his  application.  Upon 
such  proof  being  made,  an  order  to  this  effect  is  en- 
tered on  the  record  of  the  court,  and  upon  the  produc- 
tion of  a  certified  copy  of  the  order,  any  three  Judges 
of  the  higher  courts  of  the  State  may  give  a  full  and 
thorough  examination,  and  may  give  the  applicant  a 
license  to  practice. 

Any  attorney  duly  licensed  in  another  State  or  Ter- 
ritory may  practice  as  such  in  the  courts  of  West  Vir- 
ginia upon  producing  satisfactory  evidence  of  his 
having  been  thus  licensed. 

Graduates  of  the  law  school  of  West  Virginia 
University,  upon  presenting  the  order  before  refer- 


TO   THE   BAR   IN   ALL  THE   STATES.  2/1 

red  to,  together  with  diploma,  shall  be  admitted  to 
practice. 

Wisconsin. 

Any  person  of  good  moral  character  and  twenty-one 
years  of  age,  who  has  studied  law  for  two  years,  upon 
satisfactory  proof  of  these  facts,  may  be  examined  in 
open  court  or  by  a  committee  appointed  for  that  pur- 
pose, and  is  admitted  to  practice  if  such  examination  is 
satisfactory. 

Graduates  of  the  law  departuent  of  the  University 
of  Wisconsin  are  admitted  to  practice  in  all  the  courts 
of  the  State  upon  production  of  diploma. 

All  persons  who  have  been  admitted  to  practice  in 
the  Supreme  Court  of  any  other  State  or  Territory, 
and  who  shall  be  residents  of  Wisconsin,  may  be  ad- 
mitted upon  the  production  of  their  certificates  to 
practice  in  such  States  or  Territories. 

Women  are  admitted  to  practice  on  the  same  terms 
as  men. 

Wyoming. 

Any  person,  who  is  a  citizen  of  the  United  States, 
who  has  read  law  for  two  years,  one  of  which  must  be 
in  the  office  of  one  of  the  Judges  or  of  a  regularly 
practicing  attorney,  who  shall  certify  that  the  appli- 
cant is  a  person  of  good  character  and  well  qualified 
to  practice  law,  and  who  satisfies  any  district  court  of 
his  ability  by  an  examination,  may  be  admitted  to  prac- 
tice. Any  person  admitted  to  practice  in  the  District 
Court  is  admitted  to  practice  in  the  Supreme  Court 
upon  motion. 

Attorneys  from  other  States  locating  in  Wyoming 
are  admitted  to  practice  upon  motion,  on  producing  a 
certificate  of  admission  and  upon  showing  to  the  satis- 
faction of  the  court  that  they  are  in  good  standing  and 
of  good  character. 


INDEX. 


ABATEMENT,  pleas  in,  192. 
kinds  of,  192. 

must  give  plaintiff  a  better  writ,  2OI. 
ACCESSION,  83. 
ACCESSORIES,  221. 

when  there  may  be,  222. 
ACCIDENT,  167. 

equitable  relief  afforded  when,  167. 
ACCOUNTS,  180. 
to  falsify,  180. 
to  surcharge,  180. 
when  under  control  of  equity,  180. 
ACTION, 

appearance  in,  181. 
begun  how,  189. 
classes  of,  184. 
common  counts,  186. 
Ex  contractu, 

assumpsit,  186. 
covenant,   187. 
debt,  187. 
Ex  delicto, 
case,  1 88. 
replevin,  188. 
trespass,  187. 
trover,  187. 
Personal  actions,  186. 
Real  actions, 

ejectment,  182,  185. 
quare  impedit,  184. 
writ  of  dower,  184. 
writ  of  right  of  dower,  184. 
Venue  of,  199. 

(273) 


274  INDEX. 

ADJUSTMENT,  174. 
ADMINISTRATOR, 

authority  of,  87. 

de  bonis  non,  86. 

duties  of,  86. 

with  will  annexed,  86. 
ADMISSIONS, 

when  admissible,  213. 
ADVANCEMENTS,  184. 
ADVERSE  POSSESSION,  53. 
ADVOWSONS,  23. 
AFFRAY,  222. 
AGENCY, 

defined,  108. 

how  created,  109. 

how  terminated,  no. 
AGENTS, 

acts  of,  when  binding,  108,  109. 

kinds  of,  108,  no. 

master  and  servant,  112. 

public  and  private,  distinction  between,  no. 

set-off  by  third  party,  109. 

sub-agents,  109. 

when  personally  liable,  109. 
AIDS,  18. 
ALABAMA,  235. 
ALIENATION, 

by  devise,  78. 

by  spcial  custom,  77. 

defined,  59. 

to  a  corporation,  69. 
ALIMONY,  10. 
ALLODIAL  LANDS,  18. 
ALLUVION,  58. 
AMBIGUITIES,  210. 
ANCIENT  DEMESNE,  21. 
ANNUITIES,  24. 
APPEARANCE,  189. 
ARBITRAMENT  AND  AWARD,  135. 
ARBITRATION,  135. 
ARIZONA,  236. 
ARKANSAS,  236. 


INDEX.  275 

ARREST, 

of  judgment,  196. 

under  process,  151. 

without  warrant,  152. 
ARSON,  222. 
ASSAULT, 

as  a  crime,  222. 

as  a  tort,  151. 
ASSIGNMENT, 

as  a  common  assurance,  68. 

in  equity,  167. 
ASSUMPSIT, 

allegation  of  promise  necessary,  138. 

in  quasi-con  tracts,  138. 

kinds  of,  186. 

ASSURANCES  BY  MATTER  OF  RECORD,  75. 
ATTESTATION, 

of  a  deed,  61. 

of  a  will,  79. 
ATTORNEY,  no. 
ATTORNMENT,  19. 
AUCTIONEERS,  in. 


BAGGAGE,  107. 
BAILMENTS, 

commodatum,  102. 

depositum,  101. 

locatio,  103,  104. 

mandatum,  102. 

pignus,  102. 

distinguished  from  mortgage,  103. 

warehouseman,  102. 
BARGAIN  AND  SALE,  72. 
BARRATRY,  222. 
BARRETRY,  222. 
BARTER,  96. 
BASE  FEE,  38. 
BATTERY, 

intent  to  commit  necessary,  151. 

justified  how,  151. 
BIGAMY,  223. 


276  INDEX. 

BILLS  IN  EQUITY, 
defined,  202. 
of  account,  180. 

of  creditors  (see  CREDITORS'  BILLS), 
of  discovery,  181. 
of  interpleader,  182. 
of  peace,  182. 
of  review,  204. 
of  revivor,  204. 

in  nature  of  bill  of,  204. 
partnership,  181. 
quia  timet,  181. 
supplemental  bills,  204. 

in  nature  of,  205. 
to  perpetuate  testimony,  183. 
to  quiet  title,  182. 
to  take  testimony,  183. 
BILLS  OF  EXCHANGE, 
acceptance, 

how  made,  126. 

kinds  of,  126. 

promise  of,  126. 

supra  protest,  126. 
acceptor,  liability  of,  125. 
days  of  grace, 

computation  of,  94. 

rules  governing,  127. 
domestic,  126. 
essentials  of,  125. 
foreign,  127. 
indorsers  of,  125. 
notice  of  dishonor  of,  126. 
parties  to,  125. 
payable  when,  125. 
protest  of,  126. 
BLASPHEMY,  223. 
BONDS, 

penal,  167. 

relief  given  when,  168. 
specific  performance  as  affecting,  1 68. 
BOROUGH  ENGLISH,  20. 
BOUGHT  AND  SOLD  NOTES,  in. 


INDEX. 

BRIBERY,  223. 
BROKERS,  in. 
BURGLARY,  223. 

CALIFORNIA,  237. 
CANONS  OF  DESCENT,  54. 
CASE,  ACTION  OF,  188. 
CASUAL  EJECTOR,  185. 
CAVEAT  EMPTOR,  97. 
CESTUI  QUE  VIE,  31. 
CHAMPERTY,  223. 
CHANCERY,  COURT  OF,  160 
CHEATING,  224. 
CHECKS,  127. 

CHILDREN,  KINDS  OF,  12. 
CHOSES, 

in  action,  83. 
in  possession,  83. 
CIVIL  LAW,  i. 
CODE,  r. 

CO-EMPLOYEES,  113. 
COGNIZEE,  76. 
COGN1ZOR,  76. 
COLORADO,  237. 
COMMON, 

distinguished  from  easement,  25. 
right  of,  23. 

COMMON  ASSURANCES,  59. 
COMMON  CARRIERS, 
defined,  104. 
liability  of,  105,  106. 

begins  when,  105,  107. 
beyond  own  route,  106. 
ends  when,  105,  107. 
for  baggage,  107. 
regulation  of,  by  contract,  107. 
COMMON  COUNTS,  186,  187. 
COMMON  LAW,  2. 
COMMON  RECOVERY, 

as  devised  by  the  ecclesiastics,  70. 
as  a  means  of  barring  estates  tail,  76. 
CONDITIONS,  KINDS  OF,  38,  63. 


2/7 


2/8  INDEX. 

CONFESSION  AND  AVOIDANCE,  PLEA  BY  WAY  OF,  193. 

CONFESSIONS,  214. 

CONFIRMATION,  67. 

CONFUSION  OF  GOODS,  83. 

CONNECTICUT,  238. 

CONSANGUINITY. 

how  computed,  53,  54. 

kinds  of,  53. 
CONSIDERATION, 

adequacy  of,  not  necessary,  92. 

denned,  91. 

executed,  when  sufficient,  9*. 

kinds  of,  91. 

of  a  deed,  60. 

of  depositum,  101. 

of  guaranty,  133. 

of  quasi-contracts,  143. 

of  promissory  notes,  118,  119. 
CONSPIRACY,  224. 
CONSTRUCTION, 

of  contracts,  136. 

of  statutes,  4. 
CONTRACTS, 

ambiguities  in,  210. 

assent  to,  91. 

classes  of,  89. 

consideration  of,  91. 

construction  of,  136. 

defences  to  actions  on,  135. 

defined,  89. 

essentials  of,  89. 

fraudulent,  94. 

illegal,  93. 

immoral,  93. 

implied, 

in  fact,  89. 

in  law  (see  QUASI-CONTRACTS). 

impolitic,  93. 

lex  fori,  94. 

lex  loci  contractus,  94. 

lex  loci  solutionis,  94. 

made  when  intoxicated,  91. 


INDEX.  279 


CONTRACTS— CONTINUED. 

marriage  brocage,  93. 

of  record,  138. 

parties  to,  90. 

void  when,  99. 

void  and  voidable  distinguished,  90. 
CONTRIBUTION, 

in  equity,  174. 

of  sureties,  141,  174. 

of  tort  feasors,  141,  149 
CONVENTIONAL  ESTATES,  31. 
CONVERSION, 

defined,  154. 

distinguished  from  trespass,  154. 

evidence  of,  155. 

in  equity,  174. 

kinds  of,  154,  155. 
CONVEYANCES, 

in  defraud  of  creditors,  171. 

kinds  of,  66. 

under  statute  of  uses,  72. 
COPARCENARY, 

defined,  50. 

distinguished  from  joint  tenancy,  50. 

partition,  right  of,  51. 

seisin,  51. 
COPYHOLDS, 

defined,  20. 

how  conveyed,  77. 

how  devised,  77. 

incidents,  21. 
CORODIES,  24. 
CORPORATIONS, 

classes  of,  230. 

defined,  230. 

how  created,  231. 

how  dissolved,  231. 

powers  of,  231. 

seal  of,  232. 

COUNTERFEITING,  224. 
COVENANT, 

action  of,  187. 


280  INDEX. 

COVENANT— CONTINUED. 

damages,  when  broken,  64. 

in  a  deed,  64. 

to  stand  seised,  72. 
COVERTURE,  10. 
CREDITORS'  BILLS,  180,  181. 
CRIME, 

accessories  in,  221. 

classes  of,  221. 

defined,  219. 

drunkenness  as  affecting,  220. 

intent  necessary,  219. 

parties  incapable  of,  219. 

principals  in,  220. 

rule  against  second  trial  for,  222. 

rule  of  reasonable  doubt,  222. 
CURTESY, 

defined,  -32. 

essentials  of,  33. 

in  equitable  estates,  33. 
CUSTOMS, 

kinds  of,  2. 

requisites  of,  3. 
CY  PRES,  DOCTRINE  OF,  81, 

DAMAGES, 

defined,  149,  150. 

excessive,  ground  for  new  trial,  196. 

in  breach  of  covenant,  64. 

in  trover,  188. 

vindictive,  150. 

DAMNUM  ABSQUE  INJURIA,  150. 
DEBT,  ACTION  OF,  187. 
DECLARATION, 

counts  of,  199. 

defined,  191. 

dying,  213. 

improper  joinder  of  counts,  199. 
DECREE,  IN  EQUITY,  203. 
DEED, 

construction  of,  136. 

defined,  60. 


INDEX.  28l 


DEED— CONTINUED. 

how  avoided,  65. 

of  married  woman,  90. 

parts  of,  62. 

profert  of,  201. 

record  of,  61. 

relief  for  loss  of,  167,  1 80. 

takes  effect  when,  61. 
DEFEASANCE,  68. 
DEFENCES, 

in  pleading  in  equity,  202. 

to  actions  ex  contractu,  135. 
DELAWARE,  240. 
DEL  CREDERE  COMMISSION,  112. 
DELIVERY, 

in  sales,  97,  98. 

of  a  gift,  87. 

of  promissory  notes,  1 14. 
DEMURRER, 

defined,  191. 

kinds  of,  191. 

special,  when  necessary,  191. 
DEODAND,  84. 

DEPARTURE,  IN  PLEADING,  201. 
DESCENT, 

canons  of,  54. 

cast,  52. 

defined,  53. 
DEVISE, 

defined,  78. 

execution  of,  79. 

of  personal  property,  78. 

of  real  property,  78. 

parties,  78. 

revoked  how,  80. 

signature  to,  79. 

witnesses  to,  79. 
DIGNITIES,  24. 
DISCLAIMER,  202. 
DISTRESS,  24,  188. 
DISTRIBUTION,  OF  PROPERTY,,  55. 
DIVORCE,  10. 


282  INDEX. 

DOGS,  USE  OF,  152. 
DOMICILE,  87. 
DOWER, 

barred  how,  34. 

defined,  33. 

essentials  of,  33. 

DRAFT.     (See  BILLS  OF  EXCHANGE.) 
DURESS,  RECOVERY  OF  MONEY  PAID  UNDER,  147. 

EASEMENTS, 

created  how,  25. 

defined,  25. 

distinguished  from  licenses,  25. 

kinds  of,  26. 

EJECTMENT,  ACTION  OF,  185. 
ELECTION,  173. 
EMBEZZLEMENT,  224. 
EMBLEMENTS,  32,  35. 
EMBRACERY,  224. 
EMINENT  DOMAIN,  8,  26. 
ENGROSSING,  224. 
ENTRIES,  AS  EVIDENCE,  212,  213. 
EQUITABLE  REMEDIES  (see  BILLS  IN  EQUITY), 

injunctions,  179. 

re-execution,  180. 

rescission  and  cancellation,  180. 

specific  performance,  177,  178. 
EQUITY, 

accident  (see  ACCIDENT),  167. 

assignments,  167. 

contribution,  174. 

courts  of,  how  distinguished  from  those  of  common  law,  161. 

defined,  160. 

election,  173. 

estoppel  (see  ESTOPPEL),  172. 

exoneration,  175. 

fraud  (see  FRAUD),  169. 

liens,  equitable,  176. 

marshalling  of  assets,  175. 

maxims  of,  161. 

mistake  (see  MISTAKE),  168. 

mortgages  (see  MORTGAGE),  167. 


INDEX.  283 


EQUITY— CONTINUED. 

notice  (see  NOTICE),  171. 
origin  of  jurisdiction  in,  160. 
subrogation,  175. 
trusts  (see  TRUSTS),  163. 
ERASURE,  65. 
ERROR  IN  LAW,  197. 
ESCAPE,  228. 
ESCHEAT,  19,  57, 
ESCROW,  61. 
ESTATE,  28. 
ESTATES, 

at  sufferance,  36. 
at  will, 

construed  as  estates  from  year  to  year,  36. 

defined,  36. 

notice  of  termination  of,  36. 
for  life,  31. 
for  years, 

created  how,  35. 

incidents  of,  35. 

kinds  of,  35. 

repair  of  buildings  leased,  36. 
in  curtesy  (see  CURTESY),  32. 
in  dower  (see  DOWER),  33. 
in  fee  simple, 

conditional  estate  in,  29. 

defined,  28. 

word  heirs,  when  necessary  to  create,  28. 
in  fee  tail, 

barred  how,  30. 

created  how,  30. 

incidents  of,  30. 

kinds  of,  30. 

merger  in,  46. 
in  joint  tenancy, 

conveyed  how,  49. 

created  how,  49,  51. 

destroyed  how,  50. 

partition  of,  50. 

survivorship  in,  50. 

tenants  in,  seised  how,  49. 


284  INDEX. 

ESTATES— CONTINUED. 

in  joint  tenancy — continued, 
unities  of,  49. 

in  severally,  49. 

upon  condition, 

condition  void  when,  38. 

upon  condition,  ^ 

with  limitation,  C  distinguished,  39. 

with  conditional  limitation,  ; 
ESTOPPEL, 

as  applied  in  election,  173. 

defined,  173. 

essentials  of,  173. 

kinds  of,  172. 
ESTRAYS,  85. 
EVIDENCE, 

admissions  as,  213. 

circumstantial,  207. 

confessions  as,  214, 

direct,  206. 

excluded,  214. 

hearsay, 

rule  against  admission  of,  211. 
apparent  exceptions  to,  211. 
real  exceptions  to,  212. 

instruments  of,  206. 

oral,  as  affecting  written  instruments,  209,  21 1. 

presumptive,  207. 

primary,  209. 

proof,  distinguished  from,  206. 
burden  of,  209. 

rules  of,  208. 

witnesses  (see  WITNESS),  215. 
EXCEPTION,  63. 
EXCHANGE,  67. 
EXECUTION,  WRIT  OF,  197. 
EXECUTOR, 

authority  of,  87. 

defined,  86. 

de  son  tort,  87. 

duties  of,  86. 

with  will  annexed,  86. 


INDEX.  28; 


EXECUTORY  DEVISE,  47. 
EXONERATION,  175. 
EXTORTION,  225. 

FACTOR, 

as  surety,  112. 

defined,  in. 

distinguished  from  broker,  in. 

power  to  pledge  goods,  112. 
FALSE  IMPRISONMENT,  151,  225. 
FEE  SIMPLE.     (See  ESTATES.) 
FELONY,  221. 
FEMME  COVERT,  10. 
FEOFFMENT,  66. 
FEUD,  18. 

FEUDAL  SYSTEM,  17. 
FEUDUM  ANTIQUUM,  56. 
FINE, 

defined,  75. 

effect  of,  76. 

parts  of,  75. 
FINES,  19. 
FIXTURES, 

agricultural,  83. 

defined,  82. 

question  as  to, 

arises  when,  82. 
how  determined,  82. 
FLORIDA,  241. 
FORESTALLING,  224. 
FORFEITURE,  57,  84. 
FORGERY,  225. 
FRANCHISES,  24. 
FRANKALMOIGN,  21. 
FRANKMARRIAGE,  30. 
FRAUD, 

as  affecting  specific  performance,  178. 

classes  of,  169,  170. 

equitable  remedy  for,  169. 

instances  of,  not  cognizable  in  equity,  169. 
FREE  AND  COMMON  SOCAGE,  19,  21. 
FREEHOLD,  28 


286  INDEX. 

GAVELKIND,  20. 
GEORGIA,  241. 
GIFT,  DEED  OF,  66. 
GIFTS, 

causa  mortis,  87. 

deliver)-  of,  87,  88. 

inter  vivos,  87. 

revocable  when,  87. 
GRAND  SERGEANTY,  19. 
GRANT,  67. 
GUARANTOR, 

defined,  133. 

released  how,  134. 

subrogation  of,  134. 
GUARDIAN, 

accounts  of,  16. 

ad  litem,  16. 

duties  of,  15. 
GUARDIANSHIP,  KINDS  OF,  14. 

HABENDUM,  62. 
HEIRLOOMS,  85. 
HEIRS, 

apparent,  54. 

as  used  in  a  deed,  28. 

presumptive,  54. 

HEREDITAMENTS,  KINDS  OF,  22. 
HERIOTS,  21,  85. 
HOMAGE,  17. 
HOMICIDE, 

defined,  225. 

excusable,  225. 

felonious,  226. 

justifiable,  225. 
HOTCHPOT,  51. 
HUSBAND  AND  WIFE  (see  MARRIAGE), 

communications  between,  214. 

necessaries,  liability  for,  u. 

power  to  contract,  10. 

torts,  liability  for,  n. 

IDAHO,  243. 


INDEX.  287 


IDIOTS, 

contracts  of,  90. 

incompetent  to  make  devise,  78. 
ILLINOIS,  243. 

INCORPOREAL  HEREDITAMENTS, 
INDENTURE,  60. 
INDIANA,  244. 
INDORSEMENT, 

contract  of,  116. 

kinds  of,  116,  117. 
INFANTS, 

contracts  of,  90. 

criminal  capacity  of,  219. 

custody  of,  12. 

duties  to,  12. 

emancipation  of,  14. 

power  to  devise,  78,  79. 

support  of  parents  by,  14. 
INJUNCTIONS,  179, 
INJURIA  SINE  DAMNO,  150. 
INNKEEPERS,  104. 
INSTITUTES,  i. 
INTERESSE  TERMINI,  35. 
INTERNATIONAL  LAW,  i. 
INTERPRETATION,  4. 
INTESTACY,  85. 
INVESTITURE,  17. 
IOWA,  244. 
ISSUE,  191. 


JOINT  TENANCY. 
JOINTURE,  34. 
JUDGMENT, 

as  a  contract,  138. 

defined,  197. 

motion  for,  non  veredicto  obstante,  196. 
JURISDICTION,  PLEA  TO,  192. 
JUS  ACCRESCENDI,  50. 
JUSTINIAN,  i. 

KANSAS,  245. 
KENTUCKY,  245. 


288  INDEX. 

KIDNAPPING,  227. 
KNIGHT  SERVICE,  18. 

LAND, 

defined,  22. 

devised  by  uses,  how,  71,  78. 
LARCENY,  227. 
LAW, 

defined,  i. 

interpretation  of,  4. 
LEADING  QUESTIONS,  216. 
LEASE,  35,  67. 
LEASE  AND  RELEASE,  73. 
LEGACY, 

abatement  of,  81. 

defined,  80. 

in  restraint  of  marriage,  94. 

kinds  of,  80. 
LEX, 

domicilii,  87. 

fori,  94. 

loci  contractus,  94. 

loci  rei  sitae,  87. 

loci  solutionis,  94. 
LIBEL, 

belief  in  truth  of,  no  defence,  158. 

classes  of,  1 56. 

criminal  when,  157. 

defined,  156. 

malice  essential  to,  157. 

privileged  communications,  157. 

truth  of,  a  defence  when,  157. 
LICENSES,  25. 
LIENS, 

arise  how,  106. 

defined,  106. 

equitable,  176. 

kinds  of,  106. 

stoppage  in  transitu,  effect  of,  roo. 
LIFE,  7. 

LIGHT  AND  AIR,  EASEMENT  OF,  26. 
LIMBS,  7- 


INDEX.  289 


LIVERY  OF  SEISIN,  66. 
LOUISIANA,  246. 


MAINE,  247. 
MAINTENANCE,  223. 
MALICE, 

in  libel  and  slander,  157. 

in  malicious  prosecution,  159. 

in  murder,  227. 

kinds  of.  157. 
MALICIOUS  PROSECUTION, 

action  for, 

how  maintained,  158. 
lies  for  civil  suit,  159. 

advice  of  counsel,  effect  of,  159. 

malice  essential,  159. 

probable  cause,  158. 
MANOR,  20. 

MANSLAUGHTER,  226. 
MARRIAGE. 

a  valuable  consideration,  91. 

ceremony,  10. 

consequences  of,  10. 

contract  of,  9,  10. 

denned,  9,  19. 

disabilities  arising  from,  9. 

dissolved,  how,  10. 

effect  of,  on  devise,  80. 
MARRIED  WOMEN, 

contracts  of,  90. 

equitable  estate  of,  90. 

incompetent  to  make  devise,  78. 
MARSHALLING  ASSETS,  175 
MARYLAND,  247. 
MASSACHUSETTS,  248. 
MASTER  AND  SERVANT,  1 12, 
MAYHEM,  15,  227. 
MERGER,  46,  47. 
MESNE  LORDS,  18. 
MICHIGAN,  249. 
MISDEMEANOR,  222. 
MISFEASANCE,  102. 


2QO  INDEX. 

MISSISSIPPI,  249. 
MISSOURI.  250. 
MISTAKE,  168,  169. 
MONTANA,  250. 
MORTGAGES, 

defined,  40. 

equitable,  176. 

equity  of  redemption,  40. 

fee,  as  between  parties  to,  41. 

foreclosure,  methods  of,  41. 

parts  of,  40. 

personal  remedy  against  mortgagor,  42. 

possession  of  premises,  41. 

tacking,  42. 

MORTMAIN,  STATUTES  OF,  99. 
MORTUARIES,  85. 
MULTIFARIOUSNESS,  203. 
MUNICIPAL  LAW,  I,  2. 
MURDER,  226. 

NEBRASKA,  251. 
NECESSARIES, 

contracts  for,  90. 

defined,  13. 

NEW  HAMPSHIRE,  251. 
NEW  JERSEY,  252. 
NEW  YORK,  253. 
NEVADA,  257. 
NEXT  FRIEND,  16. 
NONFEASANCE,  102. 
NORTH  CAROLINA,  258. 
NORTH  DAKOTA,  259. 
NOTES.     (See  PROMISSORY  NOTES.? 
NOTICE, 

defined,  172. 

equitable  doctrine  of,  171. 

kinds  of,  172. 
NOVATION,  134. 
NUISANCE, 

defined,  153. 

kinds  of,  153,  154. 
.NUNCUPATIVE  WILL,  79. 


INDEX. 


29I 


OBTAINING  MONEY  UNDER  FALSE  PRETENCES,  225 

OCCUPANCY,  TITLE  BY,  31,  58,83. 

OFFENSIVE  TRADE,  154. 

OFFICES,  23. 

OHIO,  259. 

OREGON,  259. 

OYER,  DEMAND  OF,  194. 


PANDECTS,  i. 
PARAPHERNALIA,  II. 
PARENT, 

necessaries,  when  liable  for,  13. 

torts,  when  liable  for,  14. 

wages  of  child,  right  of,  14. 
PARTITION,  DEED  OF,  67. 
PARTNERS, 

acts  of,  when  binding,  129,  130. 

admission  of  antecedent  debt  by,  130. 

as  regards  third  parties  when,  128. 

distinguished  from  joint  tenants,  129. 

inter  se,  129. 

kinds  of,  128. 

land  held  by,  how  regarded,  129. 

liability  of,  for  borrowed  money,  130. 

majority  of,  can  bind  minority,  130. 

notice  by  retiring  partner,  132. 
PARTNERSHIP, 

created  how,  129. 

defined,  128. 

dissolved  how.  131. 

satisfaction  of  claims  against,  132. 
PARTNERSHIP  BILLS.     (See  BILLS  IN  EQUITY.) 
PARTY  WALLS,  27. 
PASTURAGE,  23. 
PENALTY,  IN  BOND,  168. 
PENNSYLVANIA,  260. 
PENSIONS,  24. 
PERJURY,  228. 
PERPETUITIES, 

rule  against,  45. 

exception  to,  46,  166. 


292  INDEX. 

PERSONAL  PROPERTY, 

defined,  82. 
descent  of,  87. 
devise  of,  78,  79. 
fixtures  (see  FIXTURES),  82. 
kinds  of,  82. 
remainder  in,  83. 
title  to,  how  acquired,  83. 
PERSONAL  SECURITY,  7. 
PETIT  SERGEANTY,  20. 
PIRACY,  228. 
PISCARY,  23. 
PLEA, 

defined;  192,  203. 
dilatory, 

kinds  of,  192. 
to  be  pleaded  when,  201. 
peremptory  (pleas  in  bar), 

kinds  of,  193. 

puis  darreign  continuance,  193. 
PLEADING, 

rules  of,  at  law, 

miscellaneous,  201. 
to  prevent, 

obscurity,  200. 
prolixity,  201. 
to  produce, 

a  certain  issue,  199. 
a  material  issue,  198. 
a  single  issue,  198,  199. 
in  equity, 

begun  how,  202. 
bill,  parts  of,  202. 
defence,  kinds  of,  202. 
rules  of, 

in  regard  to  the  bill,  203. 
in  regard  to  the  defence,  204. 
POLYGAMY.     (See  BIGAMY.) 
PREMISES,  62. 
PRESCRIPTION,  58. 
PRESUMPTIONS,  207. 
PRIMER  SEISIN,  18. 


INDEX. 

PRISON  BREACH,  228. 
PRIVATE  PROPERTY,  8. 
PRIVIES, 

in  fines,  76. 
in  estoppel,  172. 

PRIVILEGED  COMMUNICATIONS,  157. 
PROFERT,  194,  201. 

PROFESSIONAL  COMMUNICATIONS,  214. 
PROFIT  A  PRENDRE,  25. 
PROMISSORY  NOTES, 
accommodation,  119. 
at  sight,  1 20,  121. 
consideration  of,  118. 

may  be  inquired  into  when,  119. 
days  of  grace,  121. 
defined,  114. 
due  when,  121. 
essentials  of,  114. 
indorsement  (see  INDORSEMENT). 
indorser, 

accommodation,  118. 
effect  of  release  of,  124. 
notice  of  dishonor, 

effect  of  failure  to  receive,  122. 
effect  of  notice  to  all  indorsers,  123. 
excuses  for  failure  to  give,  123. 
form  of,  123. 

to  he  given  by  whom,  122. 
to  be  given  how,  122. 
to  be  given  when,  122. 
unnecessary  when,  124. 
when  bound  without  notice,  124. 
innocent  holder  for  value,  118,  119. 
joint,  115. 
lost,  124. 

non-negotiable,  124. 
overdue,  119. 
parties  to,  115,  116. 
presentment, 

excuses  for  failure  to  present,  I2O. 
of  a  demand  note,  120. 
of  a  sight  note,  121. 


29: 


294  INDEX. 

PROMMISSORY  NOTES— CONTINUED, 
presentment — continued, 
place  of,  121,  122. 
time  of,  121. 

to  bind  indorsers,  120. 
to  bind  maker,  120. 
title  to,  how  passed,  1 16. 
PROOF.     (See  EVIDENCE.) 
PUFFERS,  in. 
PURCHASE,  TITLE  BY,  57. 

QUALIFIED  FEE,  28. 
QUANTUM  MERUIT,  186. 
QUANTUM  VALEBAT,  187. 
QUARANTINE,  OF  WIDOW,  34. 
QUASI-CONTRACTS, 

based  on  unjust  enrichment,  139. 

classes  of,  138. 

classified  as  contracts  why,  138. 

consideration,  failure  of,  142. 

insurer's  right  to  recover  in,  141 

mistake, 

of  fact,  144. 
of  law,  145. 

money  paid  under  duress,  147. 

surety's  right  to  recover  under,  140. 

waiver  of  tort,  145. 
QUE  ESTATE,  58. 

REAL  PROPERTY, 

defined,  22. 

descent  of,  87. 
REBUTTER,  193. 
RECEIPTS,  210. 
REDDENDUM,  62. 
RE-EXECUTION,  180. 
REFORMATION,  180. 
REGRATING,  225. 
REJOINDER,  193. 
RELEASE,  67. 
RELIEF,  1 8. 


INDEX.  295 


REMAINDERS, 

defined,  43. 

double  possibility  in,  44. 

essentials  of,  43. 

illustrations  of,  44. 

kinds  of,  43. 
RENTS,  24. 

REPLEADER,  MOTION  FOR,  196. 
REPLEVIN,  188. 
REPLICATION,  193. 

RESCISSION  AND  CANCELLATION,  180. 
RESCUE,  228, 
RESERVATION,  63. 
RES  GESTAE,  212. 
RETURN  DAY,  189. 
REVERSION,  47. 
RHODE  ISLAND,  262. 
RIGHTS,  KINDS  OF,  7. 
RIOT,  228. 

RIPARIAN  OWNERS,  27. 
ROBBERY,  229. 
ROUT,  228. 

SALE, 

caveat  emptor,  doctrine  of,  97. 

consent  of  parties  to,  96. 

defects  in  thing  sold,  97. 

defined,  96. 

delivered,  97,  98. 

false  representations,  97. 

how  affected  by  fraud,  99. 

price,  96. 

stoppage  in  transitu,  right  of,  99. 

thing  sold,  96. 

title  passes  when,  99. 

vendor  remaining  in  possession,  effect  of,  99. 

warranties,  97. 
SEDUCTION,  155. 
SEISIN, 

actual,  33. 

constructive,  33. 

livery  of,  66. 


296  INDEX. 

SET-OFF, 

in  waiver  of  tort,  146. 

when  admissible,  135. 
SHELLY'S  CASE,  RULE  IN,  45. 
SLANDER, 

belief  in  truth  of,  no  defence,  158. 

defined,  155. 

malice  necessary,  157. 

not  a  crime,  157. 

privileged  communications,  157. 

publication  of,  155. 

repetition  of,  156. 

truth  of,  a  defence,  157. 

words  actionable  per  se,  155. 
SOUTH  CAROLINA,  263. 
SOUTH  DAKOTA,  264. 
SPECIAL  OCCUPANT,  31. 
SPECIALTIES,  89. 
SPECIFIC  PERFORMANCE, 

as  applied  to  contracts, 

essentials  of  contract,  178. 

when  unaffe:ted  by  Statute  of  Frauds,  178. 

defined,  177. 

granted  when,  177. 

penal  bonds,  how  related  to,  168. 
STATUTES, 

construction  of,  4. 

defined,  3. 

kinds  of,  3,  4. 

particular, 

12  Charles  II.,  15,  18,  21,  78. 
29  Charles  II.,  31. 

de  donis  conditionalibus,  29. 
de  religiosis,  70. 

13  Edward  I.,  70,  188. 
13  Elizabeth,  2. 

27  Henry  VIII.,  78. 
37  Henry  VIII.,  75. 
of  frauds,  98. 
of  limitations,  94. 
of  mortmain,  69. 
of  uses,  71. 


INDEX.  297 

STATUTES— CONTINUED. 

particular— -continued, 
of  wills,  20,  78. 
quia  emptores,  19. 
15  Richard  II.,  70. 
3  and  4  William  IV.,  184. 
STOPPAGE  IN  TRANSITU,  99. 
SUBLETTING,  32,  35. 
SUBPOENA, 

duces  tecum,  215. 

in  equity,  202. 

to  compel  attendance  of  witness,  215. 
SUBROGATION,  175. 
SUMMONS,  189. 

SUPPLEMENTAL  BILLS.     (See  BILLS  IN  EQUITY.) 
SUPPORT,  EASEMENT  OF,  27. 
SURETY, 

defined,  133. 

released  how,  134. 

right  in  quasi-con  tract,  140. 

subrogation  of,  134. 
SURPLUSAGE,  201. 
SURREBUTTER,  193. 
SURREJOINDER,  193. 
SURRENDER, 

deed  of,  67. 

in  copyhold  estates,  77. 

TENANCY  IN  COMMON,  151. 

TENANCY    IN    TAIL    AFTER    POSSIBILITY   OF    ISSUE 

EXTINCT,  32. 
TENANT, 

in  capite,  18. 

paravail,  18. 

per  autre  vie,  31. 

TENANTS  BY  THE  ENTIRETY,  50. 
TENDER,  135. 
TENEMENT,  18,  22. 
TENENDUM,  62. 
TENNESSEE,  264. 
TENURE,  18. 
TERM,  35. 


298  INDEX. 

TEXAS,  264. 
TITHES,  23. 
TITLE, 

by  accession  and  confusion,  84. 

by  alienation,  59. 

by  custom,  85. 

by  descent,  53. 

by  forfeiture,  84. 

by  gift,  87. 

by  intestacy,  85. 

by  judgment,  85. 

by  occupancy,  31,  58,  83. 

by  prerogative,  85. 

by  prescription,  58. 

by  purchase,  57. 

defined,  51. 

elements  of,  51. 
TORT, 

animals,  injuries  by,  152,  153. 

assault,  151. 

battery,  151. 

conversion,  154. 

classes  of,  151. 

dangerous  animals,  152. 

defined,  149. 

dogs,  injuries  by,  152. 

false  imprisonment,  151. 

injuries  to  incorporeal  rights,  155. 

libel,  156. 

malicious  prosecution,  158. 

must  be  immediate  cause  of  injury,  150. 

nuisance,  153,  154. 

seduction,  155. 

slander,  155. 

trespass,  152. 

waste,  152. 

TORT  FEASORS,  CONTRIBUTION  BETWEEN,  141,  149. 
TRAVERSE,  193. 
TREASON,  221. 
TRESPASS, 

action  of,  187. 

defined,  152,  153. 


INDEX.  299 

TRESPASS— CONTINUED. 

distinguished  from  conversion,  154. 
TRIAL, 

defined,  194. 

methods  of,  195. 

new  trial,  grounds  for,  196. 
TROVER, 

action  of,  187. 

demand  necessary  to  sustain  action,  188. 

distinguished  from  trespass  and  replevin,  187. 

measure  of  damages  in,  188. 
TRUSTS, 

active,  165. 

charitable,  166. 

constructive,  163. 

cy  pres  doctrine  as  applied  to,  166. 

executed,  166. 

executory,  165. 

express, 

created  how,  165. 
essentials  of,  165. 

implied,  163. 

origin  of,  72. 

passive,  165. 

private,  166. 

public,  166. 

resulting,  164. 
TURBARY,  23. 

UNJUST  ENRICHMENT,  DOCTRINE  OF,  139. 
UNLAWFUL  ASSEMBLY,  229. 
USAGE,  3. 

USES, 

defined,  70. 
kinds  of,  73. 
lands  devised  by,  71. 
objections  to,  71. 
statute  of, 

conveyances  arising  from,  72. 

defeated  how,  72. 

explained,  71. 
UTAH,  265. 


300  INDEX. 

VARIANCE,  208. 

VENIRE  FACIAS  DE  NOVO,  MOTION  FOR,  196. 

VENUE,  199. 

VERDICT, 

defined,  195. 

kinds  of,  195. 

set  aside  how,  195,  196. 
VERMONT,  265. 
VILLENAGE,  20,  21. 
VIRGINIA,  267. 
VIVUM  VADIUM,  40. 

WAIFS,  85. 
WARDSHIP,  19. 
WAREHOUSEMEN,  102. 
WARRANTY, 

collateral,  63. 

in  sales,  97. 

lineal,  63. 

WASHINGTON,  267. 
WASTE,  58,  152. 
WATER, 

easement  of,  26. 

flow  of,  27. 

subterranean,  27. 
WAYS,  23,  26. 
WELSH  MORTGAGE,  40. 
WEST  VIRGINIA,  268. 
WILLS.     (See  DEVISE.) 
WISCONSIN,  269. 
WITNESS, 

attendance,  how  enforced,  215. 

credibility,  how  impeached,  218. 

examination  of,  216. 

incompetent  when,  215. 

leading  questions,  when  admissible,  216. 

legacy  to,  80. 

not  compelled  to  answer,  when,  217. 

to  a  will,  79. 

written  instruments,  may  refer  to,  when,  217. 
WRIT, 

defined,  189. 


INDEX.  301 


WRIT— CONTINUED. 

entry  of,  189. 

issued  from  Chancery,  160. 

of  habeas  corpus  ad  testificandum,  215. 

of  error,  197. 

return  day  of,  189. 
WRONGS.     (See  TORTS.) 
WYOMING,  269. 


[WHOLE  NUMBEB  OP  PAGES  318.] 


